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This is not legal advice, which can only be given by an attorney admitted to practice law in your jurisdiction after hearing all of the facts and circumstances in a particular case.

Monday, November 27, 2006

DC Regulations Prohibiting Gender Identity Discrimination

The D.C. Human Rights Commission has created regulations designed to implement the changes to the DC Human Rights Act that incorporated gender identity and expression made in March of this year. The rules, effective on October 27, 2006, are known as the “Compliance Rules and Regulation Regarding Gender Identity or Expression.” Specifically, the regulations provide guidance to employers, housing, and commercial space providers, public accommodations, educational institutions, and the DC government on the requirements of the law. The regulations ensure that transgender individuals are treated in a manner that is consistent with their identity or expression, rather than according to their presumed or assigned sex or gender. As an example, the regulations direct entities to allow transgender individuals the right to use restrooms, dressing rooms, and other facilities that are consistent with their gender identity or expression.

These regulations are remarkably comprehensive, specific and progressive, even more so than the San Francisco regs or New York guidelines. There are a lot of similarities -- for example, all three prohibit gender identity discrimination and specifically address the foreseeable issues, such as access to restrooms. But only DC requires by regulation that employers permit access to the restrooms that are "consistent with" the employee’s gender identity or gender expression. That means if I identify as a woman, or express my gender as a female (regardless of whether I identify as a man or woman), I must be allowed access to the women's restroom the same as other women.

By contrast, SF's regs say only that employers must provide transgender employees with a bathroom "appropriate" to their gender identity, omitting the term "consistent with" (although that phrase is used elsewhere in the document) . Would a single use bathroom in the basement be okay? I'm not sure, but it's not terribly clear, either. New York City's guidelines merely say that failure to allow use of a restroom consistent with gender identity or gender expression is one of the "factors that suggest that discriminatory conduct related to gender identity has occurred." Since NYC's rules are not regulations, but guidelines, they don't have the force of law. Though it is likely that the NYC Human Rights Commission will take them seriously, it's not clear whether a court would do so. Its status is also in doubt (minor though it may be, to my mind) because NYC has court precedent saying that bathrooms may be segregated on the basis of "biological sex", though only in the NY Supreme Court (the lowest of New York State's court system and not binding on any other courts).

And when it comes to locker rooms, SF and NYC get positively vague. SF says employers only need to make "reasonable accommodations" in this regard and only for "gender identity which is publicly and exclusively asserted" and for which they have ID or a doctor's note. (That last part contradicts another part of the document, which says that asking for proof of gender before a trangender person is permitted access is prohibited.) As to what's "reasonable" -- lawyers have long known that "reasonable" is a synonym for "what 12 people who couldn't get out of jury duty think is normal." And NYC again says that not allowing use of a locker room consistent with gender identity or gender expression is a factor "suggesting" discrimination. DC, however, comes right out and says that employers "shall allow" employees the use of dressing rooms "consistent with" not only their "gender identity" but also their "gender expression" and regardless of whether they have ID or a doctor's note (and requiring one is prohibited).

SF's regulatory scheme "strongly urges" that all single-use bathrooms be designated gender neutral, and NYC's guideline "recommends" it, but only DC says that employers "shall" use gender-neutral signage for single occupancy restrooms.

SF and NYC have some language prohibiting harassment, but only DC spells out specific foreseeable scenarios that protect transgender employee privacy:

(a) Deliberately misusing an individual’s preferred name form of address or gender-related pronoun;
(b) Asking personal questions about an individual’s body, gender identity or expression, or gender transition;
(c) Causing distress to an individual by disclosing to others that the individual is transgender; and
(d) Posting offensive pictures, or sending offensive electronic or other communications.

It's good to provide specific guidance to employers. However, since mistakes in pronoun usage, annoying curious personal questions and whispers behind the back are standard fare for transgender people, I think training is going to be very important for litigation control. Of course, a couple of incidents may not meet the threshhold requirement that the conduct is so pervasive that it "alters the terms of employment," but these things add up quickly.

Interestingly, the DC regs use and define the term "transgender," which very few statutes do because the term is so ambiguous. The regs give a definition that indicates that anyone whose identity or behavior differs from gender stereotypes is transgender. That's pretty broad. Under this standard, is that guy in the office who likes to cook and go to chick flicks transgender? Not sure, but seems like it. The only other place I've seen the term used is in Cincinnati, and theirs was similarly overinclusive, requiring gender characteristics, behavior, and/or self-identification typical of or commonly associated with persons of another gender.

While I realize that the word "transgender" is intentionally inclusive, and is considered an "umbrella term" for all sorts of gender variance, I disagree with those who would define transgender to include every person who engages in some atypical behavior, which includes every last one of us on earth. As the Oxford English Dictionary says "a person whose identity does not conform unambiguously to conventional notions of male or female gender, but combines or moves between these." There is an identity component in there somewhere, I believe.

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