Guidance Regarding Gender Identity and Expression Discrimination Under the NYCHRL

Sex discrimination is prohibited pursuant to Executive Law § 296(13), which provides that:
“The opportunity to obtain employment without discrimination because of age, race, creed, color, national origin, sex . . . shall not be denied or abridged.”

In 2002 and 2008, the New York City Council expanded protections for transgender and gender non-conforming New Yorkers by adding the categories of personal gender identity and expression of gender to Executive Law § 296(13). Now, sex discrimination is defined as discriminating against someone due to their actual or perceived gender identity or expression.

[1] Commission on Human Rights, New York City(“NYCCHR”) enforces the New York City Human Rights Law (“NYCHRL”), which prohibits prejudice in employment, housing, public amenities, and other areas based on a person’s preferred name, pronoun, address, and/or their actual or perceived sex assigned at birth, gender identity, race, national origin, color, age*, disability*, marital status *, lawful occupation *, status *, sexual orientation*, military status *, or familial status.

[2] In addition to these protected categories, the law also bans discrimination based on an individual’s association with a person in one of these groups.

[3] The term “gender expression” refers to a person’s gender-related appearance and behavior, whether stereotypically associated with the sex assigned at birth or not. For example, a female born with a penis may be perceived by others as female, but she may express herself through her behavior, dress, hairstyle, and/or mannerisms more traditionally associated with males than females. Such an individual is protected under the NYCHRL.

[4] The term “gender identity” refers to one’s own internal understanding of their gender, which can be the same or different from their presumed sex as assigned at birth. This includes a person’s gender-related appearance, behavior, or physical characteristics regardless of whether they are perceived by others as male, female, neither, or both, and regardless of the associated pronouns used.

The NYCHRL applies to employers with employees exceeding four in number, housing providers, public accommodations, and any business that offers insurance to individuals in New York City. The protections against prejudice on the basis of personal gender identity or individual gender expression apply regardless of the employee’s duties and/or title, so long as such employee regularly works in New York City.

These laws were created to protect the rights of transgender individuals who do not conform to specific gender identities, who had historically been denied equal opportunities in education, employment, housing, and other areas on the basis of their sex assigned at birth. Historically, discrimination has occurred against people who do not conform to stereotypical notions about how men or women are supposed to appear or behave. Employers have fired workers because they did not “act” appropriately based on their male or female sex even though they were born with a different sex. Such behavior is prohibited under these laws.

The NYCCHR takes corrective action against businesses that unlawfully discriminate by failing to use a name preferred by an individual, pronoun, or even a title. Employers also must allow employees access to restrooms that correspond with the employee’s gender identity. Businesses may face civil actions, hefty fines for violations, and orders to take corrective action.

The NYCCHR offers guidelines for businesses on these new protections under the law. These guidelines recommend that employers permit staff members to use bathrooms in line with their individual gender identity or expression even if the employee’s appearance may not match traditional gender-based stereotypes. Such an approach is critical in helping avoid claims of unlawful gender identity discrimination.

The new rules also provide greater protection against discriminatory dress code policies where there are exceptions that unfairly impact transgender employees. For instance, it would be illegal for any employment provider to apply more stringent appearance standards for one sex than those applied to employees of another sex unless there is a business necessity for the different treatment.

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