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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.

Thursday, December 14, 2006

New Jersey passes "gender identity" protection

New Jersey has enacted into law a bill that adds "gender identity and expression" to the list of classes protected from discrimination.

New Jersey’s Senate passed bill S362 on Monday, December 11, by a vote of 31-5. The Assembly version, A930, was substituted by the Senate version, S362, and as such, passed New Jersey’s lower house today by a vote of 69-5. It now goes to Governor Jon S. Corzine, who is expected to sign the bill into law. The text of S362 can be found at http://www.njleg.state.nj.us/2006/Bills/S0500/362_R1.HTM The bill will take effect on June 12, 2007, 180 days after today's passage.

The bill inserts "gender identity and expression" into a number of existing laws:

- Title 10:2, which requires public works contracts to contain a clause in which the contractor agrees not to discriminate in employment, violation of which may result in contract termination, and Title 10:5-32, which prohibits awarding a public contract to any firm that has not agreed and guaranteed not to discriminate.

- Title 10:5-5-4, which prohibits discrimination by public accommodations, such as restaurants and theaters and in housing.

- Title 10:5-9.1, which prohibits discrimination in public housing

- Title 10:5-12, which prohibits discrimination by employers, labor unions, public accommodations, such as restaurants and theaters, in housing or in credit and lending transactions.

Thus, it's not just non-discrimination in employment, but in public contracts, public accommodations, housing, and credit and lending transactions. These provisions are typical of a comprehensive non-discrimination bill. Not all of the states that have passed legislation prohibiting discrimination based on gender identity have included such comprehensive language. An example of this is Hawaii, which prohibits discrimination based on gender in housing, but not in employment.

Now for the "defining moment" -- the bill's definition of "gender identity and expression." The bill defines "gender identity or expression" as "having or being perceived as having a gender related identity or expression whether or not stereotypically associated with a person's assigned sex at birth. 'Gender identity or expression' includes transgender status." Title 10:5-5(rr) The part about "whether or not stereotypically associated with a person's sex at birth" is typical. But it's unusual to have a definition include the words it is defining. The key question whenever this comes up is whether "gender identity or expression" includes someone who lives part-time in different gender roles. The other atypical item is that "gender identity or expression includes transgender status." The term "transgender" is inherently ambiguous. http://jweissdiary.blogspot.com/2006/03/issue-what-does-transgender-mean.htmlFor that reason, it is rarely included in legislation. It is included in the recent DC regs, and I had a little discussion there about the term. http://jweissdiary.blogspot.com/2006/11/dc-regulations-prohibiting-gender.html Here, transgender status is undefined in the bill, leaving it open to interpretation, so it may be difficult for courts to decide what constitutes transgender status.

This prompts a question that I often get in my consulting practice: what if someone just pretends to be have a female gender identity, but they do so falsely in order to obtain sexual gratification from the presence of females? My answer is that I have never heard of a situation where a person used a false claim of gender identity for that or any other purpose. I've certainly heard of a few cases where a man dressed as a woman to commit a crime and try to escape detection (though of course, having heard of the cases, the attempts were obviously not successful). I've also heard about men committing crimes in women's bathrooms. But those men didn't bother to dress up in women's clothing because their defense was to escape detection, not to make false claims about gender identity. More significantly, those cases were not spurred by the passage of a gender identity non-discrimination law. Now what if, you think, what if some crafty male, spurred by this new law, were to come up with a lascivious plan to lurk in the women's restroom and then, when confronted by the police about his harassing behavior, claim that he was entitled to commit harassment because of his gender identity? The answer is that harassing behavior is not permitted regardless of one's gender. If I am standing in the women's restroom and the woman next to me puts her hand on my thigh, that's harassment, and it doesn't matter if she claims gender identity issues or not.

The bill contains a number of provisions that preserve traditional understandings of sexual difference in public accommodations and employment.

Title 10:5-12 (f)(1) contains an exception that allows for single sex accommodations: "provided, however, that nothing contained herein shall be construed to bar any place of public accommodation which is in its nature reasonably restricted exclusively to individuals of one sex, and which shall include but not be limited to any summer camp, day camp, or resort camp, bathhouse, dressing room, swimming pool, gymnasium, comfort station, dispensary, clinic or hospital, or school or educational institution which is restricted exclusively to individuals of one sex, provided individuals shall be admitted based on their gender identity or expression, from refusing, withholding from or denying to any individual of the opposite sex any of the accommodations, advantages, facilities or privileges thereof on the basis of sex; provided further, that the foregoing limitation shall not apply to any restaurant as defined in R.S.33:1-1 or place where alcoholic beverages are served.

I think this means that a dressing room may be restricted to individuals of a single sex, and may refuse entry to a person of the "opposite sex," but it must nevertheless allow admission to persons based on their "gender identity or expression." That's a mite confusing, but after you parse it, you can see that it simply preserves the right to have a single sex facility, and transgender people must be admitted to the facility according to their gender identity or expression.

Title 10:5-12 (g)(3) contains an exception for single-sex housing: "that nothing contained in this subsection shall be construed to bar any person from refusing to sell, rent, lease, assign or sublease or from advertising or recording a qualification as to sex for any room, apartment, flat in a dwelling or residential facility which is planned exclusively for and occupied by individuals of one sex to any individual of the exclusively opposite sex on the basis of sex, provided individuals shall be qualified based on their gender identity or expression.

As before, it preserves the right to have a single-sex facility, but nevertheless allows admission to transgender people based on their gender identity.

Title 10:5-12(p) specifically addresses workplace dress codes. "Nothing in the provisions of this section shall affect the ability of an employer to require employees to adhere to reasonable workplace appearance, grooming and dress standards not precluded by other provisions of State or federal law, except that an employer shall allow an employee to appear, groom and dress consistent with the employee’s gender identity or expression." The key word here, of course, is "reasonable," which in legalspeak means "socially acceptable." Since differential dress codes for men and women are socially acceptable, this section permits such a dress code. However, as courts have noted, dress codes may not impose an unequal burden on men and women, so there are some limitations.

Looking at the wider picture, advocacy groups have noted that passage of the NJ transgender equality law makes New Jersey the third most populous state to outlaw discrimination based on gender identity, and that laws now protect one-third of the US population based on gender identity or expression.

I previously posted a blog on the NJ bill that gives more information about the wider picture.

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