Understanding New York Regulations Regarding Prohibited Discrimination On The Basis Of Gender Identity, Transgender Status, Or Gender Dysphoria

New York State and New York City both recently enacted regulations and enforcement guidance designed to prohibit discrimination on the basis of gender identity, transgender status, gender expression and gender dysphoria.1 Both have now taken effect.

1. NEW YORK STATE REGULATIONS EFFECTIVE JANUARY 20, 2016

On October 22, 2015, the New York State Division of Human Rights promulgated new proposed regulations under the New York State Human Rights Law ("NYSHRL"), prohibiting discrimination or harassment on the basis of gender identity, transgender status, or gender dysphoria.2 These new regulations took effect on January 20, 2016. The state regulations provide that:

Discrimination on the basis of gender identity is sex discrimination, and the protections in the NYSHRL against gender discrimination also prohibit discrimination on the basis of gender identity or transgender status. Harassment on the basis of a person's gender identity or transgender status constitutes sexual harassment. Discrimination on the basis of gender dysphoria is disability discrimination, and the prohibitions in the NYSHRL against disability discrimination prohibit gender dysphoria. Refusal to provide reasonable accommodations for persons with gender dysphoria, where requested and necessary,3 is disability discrimination. Harassment on the basis of a person's gender dysphoria is harassment on the basis of disability.4 II. NEW YORK CITY COMMISSION ON HUMAN RIGHTS ENFORCEMENT GUIDANCE

On December 21, 2015, the New York City Commission on Human Rights ("the City Commission") issued lengthy and detailed Legal Enforcement Guidance ("the Guidance") addressing the scope of prohibitions against discrimination on the basis of gender identity and gender expression.5 The Guidance details several prohibited activities that are considered unlawful discrimination on the basis of gender identity and gender.

The New York City Human Rights Law ("NYCHRL") was amended in 2002 to change the definition of "gender" for the purposes of the NYCHRL to "include actual or perceived sex and shall also include a person's gender identity, self-image, appearance, behavior or expression, whether or not that gender identity, self-image, appearance, behavior or expression is different from that traditionally associated with the legal sex assigned to that person at birth."6

More than 13 years after the amendment, riding a wave of progressive legislation from the City Council and a growing list of states and municipalities providing specific protections from discrimination on the basis of gender identity,7 the City Commission issued the Guidance, which for the first time identified specific conduct that constitutes unlawful discrimination on the basis of gender identity or gender expression.

1. Conduct Constituting Unlawful Discrimination on the Basis of Gender Identity or Gender Expression

   The Guidance clarifies that the NYCHRL prohibits discrimination in the terms and conditions of employment based upon gender identity or gender expression. The protections, like most prohibitions against discrimination on the basis of a protected category, apply to employment, housing and public accommodations.

   The Guidance identifies the following eight distinct categories of conduct that constitutes unlawful discrimination on the basis of gender identity or gender expression:

   1. Failing to Use and Individual's Preferred Name or Pronoun

      The Guidance takes the position that covered employers8 and entities are legally...