New York governor Andrew Cuomo announced last week plans to enact new state regulations that protect transgender people from discrimination. The new regulations outlaw discrimination in the workplace, housing, and various public facilities such as hospitals and restaurants. The regulations were announced during the governor’s speech at a dinner hosted by New York-based civil rights and advocacy organization Empire State Pride Agenda. The governor intends to enact the executive order within one week.
The governor’s announcement follows several years of unsuccessful efforts to pass legislation protecting transgender rights in New York. State law currently bans sexual orientation-based discrimination. But when that law passed back in 2002, it expressly excluded transgender rights. In subsequent years, the Democrat-controlled Assembly has frequently attempted to expand protection to transgender individuals through the Gender Expression Non-Discrimination Act (“GENDA”). Each time the bill has passed through the Assembly, however, it has been blocked by the Republican-controlled senate.
That partisan stalemate led to the governor’s current action. While 19 other states currently ban discrimination based on transgender status, each of those states enacted those laws through legislation. Instead, Cuomo, relying on statutory authority that allows the New York Division of Human Rights to promulgate regulations interpreting the state’s Human Rights Law, becomes the first governor to pass transgender protection laws through executive order. While a prior executive order in 2009 outlawed discrimination against transgender people, that law only protected state workers. The new law is much broader and far-reaching. Once enacted, it will apply anywhere the state’s current human rights law does for housing, public and private employers, and for businesses and creditors.
Some key components of the new regulations are as follows:
- Defines transgender as having a gender identity different from the sex assigned to him or her at birth;
- Expressly provides that discrimination on the basis of gender identity is sex discrimination;
- Recognizes that the term “sex” as used in New York’s Human Rights Law includes the status of being transgender;
- Prohibits discrimination on the basis of gender identity or transgender status in all areas of jurisdiction where sex is a protected category;
- Expressly provides that harassment on the basis of gender identity or the status of being transgender is sexual harassment;
- Defines gender dysphoria as a recognized medical condition related to an individual having a gender identity different from the sex assigned to him or her at birth;
- Expressly provides that discrimination on the basis of gender dysphoria is disability discrimination;
- Recognizes that the term “disability” as used in New York’s Human Rights Law includes gender dysphoria;
- Prohibits discrimination on the basis of gender dysphoria in all areas of jurisdiction where disability is a protected category;
- Expressly provides that harassment on the basis of a person’s gender dysphoria is disability-based harassment; and
- Expressly provides that refusal to provide a reasonable accommodation for persons with gender dysphoria, where requested and necessary, is disability discrimination
It is expected that the regulations will be entered into the state registry this week, after which they will be subject to a 45-day comment period before going into effect. In addition to the comment period, the regulations may face legal challenges from both the senate and conservative activist groups who have lobbied strongly against GENDA. While the governor appeared confident in his statutory authority to enact the regulations, there is little precedent for creating a new class of protected citizens via the regulatory rather than legislative process.
Takeaway for Employers. At this point, the law is only a proposal. Barring any successful legal challenges, however, the law will go into effect upon expiration of the commentary period. Employers should begin taking steps now to ensure they are in compliance once the law is enacted. Employers should review dress code policies to ensure that they do not discriminate against transgender employees who wish to dress like the gender they identify with. Employers should also consider enacting compliant bathroom policies such as, for example, offering single-occupancy gender-neutral facilities and/or multiple-occupant gender-neutral facilities with lockable single-occupant stalls.
Employers should also ensure that their policies and practices allow for reasonable accommodations for transgender employees, particularly those who are in the process of receiving transition-related health care. Some types of reasonable accommodations could include allowing the employee time off or schedule changes for transition-related recovery and therapy. Employers may want to also consider fostering an accommodating environment by including transition-related health care coverage.
Employers should also review and, if necessary, amend their anti-discrimination and harassment policies and training practices to expressly include gender identity, gender dysphoria, and transgender status as protected classes. Employers should also accommodate an employee’s desire to be recognized by a name that aligns with the employee’s identified gender. While the name on an employee’s pay check should match his or her legal name, accommodations could be made with, for example, email addresses and name tags.