November 18, 2018

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NYC Human Rights Commission Proposes Broad Interpretation of Laws Protecting Gender Identity and Expression

The New York City Commission on Human Rights (the “Commission”) recently proposed new rules (“Proposed Rules”), which, among other things, define various terms related to gender identity, re-enforce recent statutory changes to the definition of the term “gender,” and clarify the scope of protections afforded gender identity status under the New York City Human Rights Law (“NYCHRL”). If the proposed rules are adopted, the Commission’s interpretation of the NYCHRL will establish broad protections for individuals covered by the law’s prohibition against discrimination based on gender identity.

Initially, the term “gender” was defined by the New York City Council in 2002, when it enacted Local Law No. 3 of 2002 (“Local Law 3”). Recently, Local Law No. 38 of 2018 (“Local Law 38”) expanded the definition of the term so that it now reads: “’Gender’ includes actual or perceived sex, gender identity, and gender expression including a person’s actual or perceived gender-related self-image, appearance, behavior, expression, or other gender-related characteristics, regardless of the sex assigned to that person at birth.” (Emphasis added to reflect the most significant revisions to the term’s original definition.) The Commission’s proposed rules adopt this new definition.

Beyond defining the term “gender,” Local Law 38 also defined the term “sexual orientation” as “an individual’s actual or perceived romantic, physical or sexual attraction to other persons, or lack thereof, on the basis of gender. A continuum of sexual orientation exists and includes, but is not limited to, heterosexuality, homosexuality, bisexuality, asexuality, and pansexuality.” The Proposed Rules also establish definitions for “cisgender,” “gender identity,” “gender expression,” “gender,” “gender non-conforming,” “intersex,” “sex,” and “transgender,” as well as describing covered entities’ non-discrimination obligations.

Significantly, the intent of both Local Law 3 and Local Law 38 was to ensure that the NYCHRL’s prohibition against discrimination based on sexual orientation or gender identity covered the full range of affected individuals, and that employers clearly understood the scope of the prohibition’s reach. Toward this end, the proposed rules broadly interpret the breadth of the ban on gender identity discrimination.

For example, under the proposed rules, discriminatory conduct includes:

  • deliberate misuse of an individual’s chosen name, pronoun, or title;
  • refusing to allow individuals to use single-sex facilities or participate in single-sex programs consistent with their gender identity;
  • imposing different dress or grooming standards based on gender; and
  • refusing a request for accommodation on the basis of gender.

Further, covered entities must provide equal employee benefits, regardless of gender, such as ensuring that the health plans they offer provide gender-affirming care.

The Commission will hold a public hearing on the proposed rules on September 25, 2018.  Anyone can comment on the proposed rules by signing up to speak at the hearing, or submitting written comments to policy@cchr.nyc.gov or through the NYC rules website. Comments also can be mailed or faxed to Michael Silverman, New York City Commission on Human Rights, 22 Reade Street, New York, New York 10007. The fax number is 646.500.7022.

©2018 Epstein Becker & Green, P.C. All rights reserved.

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About this Author

Amanda Gomez clerk Employment Labor & Workforce Management
Law Clerk

AMANDA M. GOMEZ* is a Law Clerk – Admission Pending – in the Employment, Labor & Workforce Management practice, in the New York office of Epstein Becker Green. She will be focusing her practice on wage and hour issues and the preparation of employment policies and procedures as well as employee handbooks and manuals.

Ms. Gomez received her J.D. from Harvard Law School, where she was the Executive Submissions Editor of the Harvard Journal of Law & Gender. While attending Harvard Law, Ms. Gomez served as a Legal...

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