Gender Identity and Expression Rights in New York

By Gregory B. Reilly and Adam G. Guttell
Wednesday, April 12, 2017
Specialty: 

Leading up to the presidential election last November, gender-neutral bathroom access seemed to be a hot-button issue. However, misleading or controversial reporting on this issue did little to clarify obligations for employers and healthcare facilities alike. The information below sets forth the current state of the law in New York for transgender individuals.

Bathroom Access

Currently, there are no New York statewide laws about bathroom access. Rather, only New York City has a bathroom access law. On June 28, 2016, Mayor Bill de Blasio approved a law requiring all publicly accessible single-occupancy restrooms in New York City to become gender neutral. Under the law, if the establishment has only one publicly accessible bathroom, then it must post the appropriate signage and be gender neutral. The law requires all covered establishments to replace any gender-specific signage on single-occupancy restrooms with new signage indicating that the restrooms may be used by all individuals. The new law does not affect single-sex bathrooms with multiple stalls.

Further New York City Protections

As of late 2015, under the New York City Human Rights Law (NYCHRL), protection against gender-based discrimination extends to discrimination based on “gender identity and expression.” The NYCHRL already protected lesbian and gay employees. The change extended this protection to gender identity and expression, as well. Under the NYCHRL, it is illegal for covered entities and employers to treat protected individuals “less well than others.” As it applies to employers, it is unlawful to fire, refuse to hire or promote, or set different terms and conditions of employment, such as providing different benefits or work assignments to individuals protected under this law. The Commission lists the following categories of violations under the guidelines:

  • Failing to use an individual’s preferred name or pronoun
  • Refusing to allow individuals to utilize single-sex facilities and programs consistent with their gender or gender identity
  • Sex stereotyping
  • Imposing different uniforms or grooming standards based on sex or gender
  • Providing employee benefits that discriminate based on gender
  • Considering gender when evaluating requests for accommodations
  • Engaging in discriminatory harassment
  • Engaging in retaliation

To maintain the covered entity’s traditional dress code, covered entities may create gender-neutral dress codes and grooming standards, such as casual, business casual, casual elegant or formal. Covered entities can also modify a gender-specific dress code from a “requirement” to a “suggestion.” These general and gender-neutral dress codes can convey the same message to patrons, while satisfying the new standards under the law.

New York State’s Adoption Of Protections

Recently, Governor Andrew Cuomo used the New York State’s regulatory process to create a new statewide protected class of citizens. This state regulation provides all transgender New Yorkers with the same standard of protection afforded to New York’s transgender state employees since 2009, and other protected classes of New Yorkers since 1945.

This statewide regulation prohibits both public and private entities from discriminating and harassing individuals on the basis of gender identity, transgender status and gender dysphoria (a recognized disability under New York State law). Promulgation of this statewide regulation will also require employers and businesses to provide reasonable accommodations to individuals alleging gender dysphoria. The regulation became effective Jan. 20, 2016.

Take-Aways

When navigating the maze of various state and local laws, New York employers need to pay close attention to the intersection of federal, state and local laws. Effective litigation avoidance requires formal policies and procedures; more importantly, key human resource personnel or close contact with outside employment counsel can help employers chart the correct course through the maze. For appropriate guidance on how to properly manage anti-discrimination laws, you may speak with one of the attorneys in Martin Clearwater & Bell LLP’s Employment and Labor Practice Group.


Gregory B. Reilly and Adam G. Guttell are Partners in MCB’s Employment & Labor Practice Group. For more information, visit mcblaw.com.