What It Means to the Business Owner

In late 2011, Massachusetts passed “An Act relative to gender identity” (“the Act”). The Act, which will take effect on July 1, 2012, defines “gender identity” and adds it as a protected characteristic under various parts of the law. Once enacted, the law prohibits discrimination on the basis of gender identity in schools and in hiring, and classifies a crime based upon a person’s gender identity as a hate crime. Discrimination on the basis of gender identity will also be subject to investigation by the Massachusetts Commission Against Discrimination.

Under the Act, “gender identity” means a person’s chosen gender-related identity, as shown by their medical history, consistent assertion of that gender identity, or “any other evidence that the gender-related identity is sincerely held.” This language is fairly broad and does not provide a bright-line test for when a person has the protection of the law and when they do not.

Employees who have a gender identity different from their assigned sex at birth should consistently be referred to by the name and pronoun preferred. This includes email addresses, business cards, employee identification cards or badges, and verbal communication.

If an employee wishes to transition to his or her preferred gender identity at work, and brings this to the attention of the company, the company should work with the employee to develop a plan for that transition and then to implement the transition. Common issues that should be addressed in such a plan include an announcement of the coming transition, education of management and employees at the company, setting a date for the transition, updating email addresses, business cards, employee identification cards or badges effective the first day on which the employee reports to work in his or her new gender role, determining how future concerns will be addressed.

In anticipation of the effective date of the law, companies should have employee handbooks and written policies reviewed for compliance with the Act, as well as other state and federal law, and to confirm the handbook and policies are being implemented and enforced appropriately.

For questions about implementing the non-discrimination rules relative to gender identity at your company, or any other business questions, contact one of the Massachusetts business attorneys at the Franklin, Massachusetts law firm of Doherty, Ciechanowski, Dugan & Cannon, P.C.