This article has been republished from the Boston Bar Journal. Click here to read the full article.
By M. Barusch, Committee for Public Counsel Services, and Catherine E. Reuben, Hirsch Roberts Weinstein LLP
On November 23, 2011, Governor Patrick signed into law legislation designed to protect transgender persons. Chapter 199 of the Acts of 2011, “An Act Relative to Gender Identity,” adds the words “gender identity” to the list of protected classes in a broad array of Massachusetts anti-discrimination laws, including laws that prohibit discrimination in employment, housing, education, lending, and credit. Yet, there was at least one general anti-discrimination law that was not amended — M.G.L. c. 272, §98 — which prohibits discrimination by places of public accommodation. Does this mean that restaurants, grocery stores, museums, and other places of public accommodation are free to tell transgender persons, “you aren’t welcome here”? If past is prologue, the answer to that question is “No.” Advocates will be using existing laws and precedent, unaffected by the recent legislation, to protect transgender persons from discrimination by public accommodations.
The new law, effective July 1, 2012, defines gender identity as “a person’s gender-related identity, appearance or behavior, whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person’s physiology or assigned sex at birth” and goes on to explain some of the evidence that could prove a person’s gender-related identity. Although the law does not actually use the term transgender, one of its primary purposes was to protect transgender persons. Transgender is an umbrella term that includes people who transition from one gender to another and/or people who defy social expectations of how they should look, act, or identify, based on their sex assigned at birth. An example of a famous transgender person is Chaz Bono. Mr. Bono’s assigned sex at birth was female, but he now lives his life as a man; he went through a gender transition, in other words, a process by which he went from living and working as one gender to another. Chaz Bono would be protected under the new law as a person who expresses a masculine identity, appearance, and behavior even though his assigned sex at birth was female. The new law also protects people who do not undergo a gender transition or do not identify with a gender different than the one traditionally associated with their sex assigned at birth, but who do not fit traditional gender roles, such as the female employee in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), who was told that, if she wanted to make partner, she should walk, talk, and dress in more feminine manner.
Debate Over the Law
Proponents of the bill focused their advocacy on telling the stories of the many transgender persons whose lives were impacted by discrimination and violence. In the largest national survey of transgender persons regarding discrimination against them, 76% of Massachusetts respondents reported experiencing harassment or mistreatment on the job, 20% had lost a job because they were transgender, and 22% were denied equal treatment by a government agency or official. The Judiciary Committee hearings went late into the night, with long lines of individuals and organizations testifying in support of the bill.
Opponents of the bill were also present, vocal, and passionate. Of particular concern was the use of restrooms. Among other things, opponents argued that the law would allow men posing as women to gain access to women’s restrooms for improper purposes. At the Judiciary Committee hearings, some women testified about their fear of being assaulted in a public restroom, even though there was no evidence that such incidents had increased with the passage of transgender rights laws in Boston, Cambridge, and other municipalities and nearby states, and even though the national survey indicated that transgender women were frequently the victims of such crimes, not the perpetrators.
Largely as a result of this debate, the law that was passed did not address public accommodations. Gender identity was added to the list of protected classes in the laws prohibiting discrimination in employment, housing, credit, and public education, but the law regarding public accommodations, M.G.L. c. 272, §98, was not so amended. By not addressing public accommodations, the Legislature left the law of public accommodations unchanged and presumably free for further development by the courts.
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