Nguyen: How Will The Law Protect Caitlyn Jenner Against Discrimination?

Thursday, June 04, 2015

AiVi Nguyen, GoLocalWorcester MINDSETTER™

While Americans have a love-hate relationship with the Kardashians generally, the very public transition of the patriarch, Bruce Jenner, from a man into a woman has been welcome with open arms by much of American society. The outpouring of support reached a pinnacle on Monday when we got our first glimpse of Jenner as a female - as Caitlyn Jenner - on the cover of Vanity Fair. The overwhelming celebration of Jenner’s transition reflects a society that has come a long way in understanding and accepting the transgender community.

Though we may be making strides in social equality with respect to gender identity, like in most instances of social change, the laws are lagging behind the movement. Only 18 states: California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont and Washington and the District of Columbia have laws that clearly prohibit discrimination against transgender people.

What is gender identity? Under Massachusetts law, gender identity means “a person’s gender-related identity, appearance or behavior, whether or not [it] is different from that traditionally associated with the person’s physiology or assigned sex at birth.” A person need only show that their gender-related identity is sincerely held, as part of their core personality. Gender identity is truly about self-definition by the individual.

There are three general approaches for protecting transgender people under state non-discrimination laws: explicitly including “gender identity” as a protected characteristic; including gender identity or expression in the definition of sexual orientation; and/or, including gender identity or expression in the definition of sex.

Massachusetts takes the first approach, adding “gender identity” as a protected characteristic to the Commonwealth’s employment, housing, credit, and public education laws and to its hate crime laws.

However, “gender identity” is not explicitly protected under Massachusetts’ public accommodations law. The public accommodations law bars a place that is open to the general public from discriminating against a person on the basis of religion, creed, class, race, color, denomination, sex, sexual orientation, nationality or disability. Note that gender identity is not included in that list.

It has been argued that a transgender person who is discriminated against in a place of public accommodation could bring a claim on the basis of sex, sexual orientation or disability if the discrimination could be linked to one of those protected categories. This feels like a cheap consolation prize because it doesn’t technically protect a transgender person from discrimination because they are transgender. It only protects a transgender person who is discriminated against for some other reason.

For example, if Caitlyn Jenner is turned away from a public restaurant in Massachusetts because she is a transgender person, under the language of the law, in order for her to bring a claim, it would have to be under the guise of sex discrimination or sexual orientation, not specifically gender identity discrimination. An even more complicated situation for Jenner is if she wants to go to a public place that is legally

segregated by sex, like a women’s bathroom, but is barred. Is that sex discrimination or sexual orientation discrimination?

It’s hard to say. There have been cases where the Massachusetts Commission Against Discrimination has found that a viable claim for gender identity discrimination is possible under the public accommodations law, despite the lack of explicit statutory guidance. However, it is unclear where that determination comes from, if not from the letter of the law. Is it because gender identity should fall under the definition of sex or sexual orientation, or is it because gender identity is seen as a protected class?

The larger social question has always been whether we allow people to self-identify and self-define or if people must be categorized by the traditional labels that others put on them. Given the widespread acceptance of Jenner’s debut as Caitlyn, I think society is moving in the direction of the former in terms of the transgender community. To avoid confusion on the rights of transgender individuals in public places, perhaps the easiest solution is to amend the public accommodations law to account for transgender people.

Aivi Nguyen is a trial lawyer with the Law Firm of Bowditch & Dewey, LLP in Worcester.