New State Law Anti-Discrimination Protections for Transgender Employees

The NYS Division of Human Rights (Division) has adopted regulations at 9 NYCRR § 466.13 banning discrimination against transgender individuals, which Governor Cuomo initially introduced in October 2015 after the Gender Expression Non-Discrimination Act (GENDA) was passed by the Assembly and failed in the Senate eight times.  Despite the likelihood that there will be legal challenges to the regulations--at minimum challenging their genesis through executive as opposed to legislative action--they are effective and require compliance as of January 20, 2016.

You can review the regulations, which are brief, here.  In sum, the regulations define “gender identity,” “transgender person,” and “gender dysphoria,” classifying the latter as a “recognized medical condition.”  The regulations confirm that the Division will treat discrimination against transgender individuals as sex discrimination and/or disability discrimination.  Specifically, the regulations establish that the “term ‘sex’ when used in the Human Rights Law includes gender identity and the status of being transgender.”  Similarly, the term “disability when used in the Human Rights Law includes gender dysphoria or other condition meeting the definition of disability in the Human Rights Law […].”  Transgender individuals now enjoy all of the “prohibitions contained in the Human Rights Law against discrimination” on the basis of sex and disability, “in all areas of jurisdiction where” sex and disability are protected categories.  This includes in the employment context. 

Further, the regulations establish that harassment on the basis of a person’s gender identity or status as transgender is sexual harassment, and harassment on the basis of a person’s gender dysphoria or other condition satisfying the HRL’s definition of disability is harassment on the basis of disability. 

Thus, the Division will process claims of discrimination or harassment by transgender people the same way it processes claims based on other protected statuses.

If you have any questions regarding this topic, please contact any member of our firm’s Labor & Employment group.

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