MCAD and Attorney General Issue Guidance for Implementation of New Law Prohibiting Transgender Discrimination

by Stefanie M. Renaud

On July 8, 2016, Massachusetts Governor Charles Baker signed Senate Bill 2407 “an Act relative to transgender anti-discrimination,” which bars discrimination against transgender persons in places of public accommodation.  Under the law, no person can be discriminated against in a place of public accommodation because of their gender identity, and transgender persons must be allowed to use the bathroom or locker room corresponding with their gender identity.  The law also required the Attorney General’s Office (“AG”) and the Massachusetts Commission Against Discrimination (“MCAD”) to develop guidelines for implementation of the law, which takes effect on October 1, 2016.

On September 1, 2016, both the AG and the MCAD released their respective guidance..  The MCAD Guidance not only addresses the new public accommodation law, but also includes general guidance about the state of the law in Massachusetts relative to transgender Bay Staters, including protections from discrimination in employment, housing, and credit and lending.  The AG’s Guidance focuses on the public accommodation law and provides companies with valuable guidance for dealing with the sticky situations that may arise when the law is implemented.

The Attorney General’s Guidance

The law prohibits a place of public accommodation from discriminating against an individual because of that individual’s gender identity.  The AG’s Guidance clarifies that a place of public accommodation is any business that is open to and serves the public, which includes:  hotels, stores, restaurants, theaters, sports stadiums, health and sports clubs, hospitals, transportation services, museums, libraries, and parks.  The Guidance also offers examples of the types of actions that may be considered discriminatory under the Act, including: refusing or denying services or offering an inferior class or quality of service because of the person’s gender identity; advertising or publicizing that an organization will not accept business from certain patrons because of their gender identity; lying or misleading someone about the availability of goods, services or facilities because of their gender identity; and harassing or intimidating someone because of their gender identity.

The Guidance also addresses a transgender person’s ability to use “sex-segregated” facilities, such as restrooms, changing rooms and locker rooms.  According to the Guidance, transgender people may use whichever facility is most consistent with their gender identity (rather than their assigned birth sex).  If a patron were to complain about the presence of a transgender person in such a facility, the Guidance says that a company representative should speak first with the complainer, not the subject of the complaint, unless there is a “reasonable basis to believe that person is not using the appropriate facility most consistent with their gender identity.”  The representative should remind the complainer that Massachusetts law protects the right of transgender people to access the facilities consistent with their gender identity.  The representative may, but is not required to, offer an accommodation to the complainer and/or the other patron such as a privacy screen, curtained area, or private facility, such as a unisex bathroom or changing room.  Places of public accommodation may also implement neutral rules that apply to all patrons, such as requiring that clothing be worn in certain areas of a facility.  Significantly, businesses may not require a patron to use a unisex facility because of their gender identity.

While the Guidance reiterates several times that the “misuse of sex-segregated facilities is exceedingly rare,” it also provides suggestions for dealing with suspected misuse.  The Guidance is clear: the place of public accommodation should presume that everyone is using the facility that corresponds with their gender identity, and businesses should not make assumptions about a patron’s gender identity based on the person’s appearance.  Inquiry into a patron’s gender identity “is generally not necessary” but may be appropriate if there is a “legitimate concern,” where the behavior of the person in question creates “reasonable worry” that the person is engaged in “improper or unlawful conduct.”  According to the Guidance, “improper or unlawful conduct” includes: loitering for the purpose of observing others; harassing or threatening violence against an employee or patron; photographing or videotaping others without permission; or violating other laws.

Where there is a “legitimate concern” the company representative may try to resolve the issue through a private and discrete conversation with the person in question.  The representative should approach the patron privately and may ask a generic question about the individual’s gender identity, such as, “Are you using the appropriate facility?”  If the patron answers “Yes,” the Guidance indicates that should end the inquiry; it will rarely be appropriate to request “gender identity” documentation.  If a person seeks to become a member “in an organization that regularly requires documentation of gender for all members,”  the Guidance lists three types of documents that may be used to prove an individual’s gender identity, including a “catchall” provision covering “any other evidence” that demonstrates the person’s gender identity is “sincerely held.”   However, a business cannot use a request for documentation to harass, intimidate, or discriminate against a person because of their gender identity.

Finally, the Guidance emphasizes that the law prohibits the use of gender identity for an improper purpose:  a person cannot use their gender identity to gain access to areas from which they would otherwise be prohibited or for the purpose of engaging in improper or unlawful conduct.  If a place of public accommodation believes a person is engaging in improper or unlawful conduct, they may address the situation consistent with the business’ typical problem resolution procedure, such as asking the patron to leave, or calling security or law enforcement.  Importantly, any call to law enforcement must be based on unlawful conduct, not on appearance, and law enforcement cannot be used to harass or embarrass.

The MCAD Guidance

The MCAD’s Guidance addresses protections from discrimination in employment, housing, and credit and lending for transgender persons, as well as addressing the new public accommodation law and offers many tips and helpful examples.

According to the MCAD Guidance, places of public accommodation include retail stores, restaurants, malls, public agencies, public parks, beaches, and public roads.  Service businesses are also covered, including loan companies, cab services, insurance companies, companies that provide long term disability benefits, and businesses that actively provide testing services.

The MCAD Guidance also offers additional examples of actions that may be considered discriminatory under the new public accommodation law, such as a hotel that refuses to book a room for a person because of their gender identity, a grocery store that refuses to bag a patron’s groceries because of their gender identity, a church refusing to serve a person because of their gender identity at a secular event, such as a spaghetti supper that is open to the general public, a restaurant that refuses to seat a group of transgender patrons because they “will draw too much attention[,]” a bakery or stationary store that refuses to provide wedding services to a  customer because of their gender identity, or a conference center that refuses to host a conference of transgender individuals.

The MCAD Guidance reiterates the AG’s assertion that it will rarely, if ever, be appropriate to request such documentation.  Under the MCAD Guidance, the sincerity of a person’s gender identity may be demonstrated with “any evidence,” which includes, but is not limited to: medical history, medical/psychiatric care or treatment of the gender-related identity; the consistent and uniform assertion of the gender-related identity; sworn witness statements attesting to the sincerity of the belief or the behavioral evidence of the belief; or evidence of an effort to change one’s legal identification documents to reflect the person’s gender identity.   According to the MCAD, the meaning of “sincerely held and part of a person’s core identity” will be developed as “the case law evolves.”  Even so, the MCAD states that “evidence of consistent conduct over a period of time” should be sufficient to demonstrate the sincerity of one’s beliefs regarding their gender identity.

Finally, the MCAD Guidance provides some “best practices” for places of public accommodation, to aid them in complying with the new law.  According to the MCAD, business should consider: (1) revising non-discrimination and other policies to include a statement that discrimination and harassment on the basis of gender identity is prohibited;  (2) prohibiting derogatory comments or jokes about transgender persons by employees, clients, vendors and any others; (3) learning and using the names, preferred pronouns, and other gender-related terms appropriate to each person’s stated gender identity; (4) providing access to sex-segregated facilities based on the person’s stated gender identity; and, (5) incorporating information about transgender individuals in diversity, anti-discrimination, and anti-harassment trainings.

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