Guide Massachusetts law about gender identity or expression

A compilation of laws, regulations, cases, and web sources on gender identity or expression law.

Best bets

Gender Identity Guidance, MCAD, December 2016
Written "to educate the public about discrimination based on gender identity, to describe what evidence may be submitted to support a claim of gender identity discrimination, to inform individuals of their rights, and to assist employers, providers of housing, mortgage services, and owners, managers and agents of places of public accommodation in understanding their obligations under Massachusetts law."

Gender Identity Guidance for Public Accommodations, Mass. Attorney General, September 2016.
Written to "help businesses and other places of public accommodation comply with the law," this document "provides definitions and general information, ... provides specific information regarding the use of ... restrooms and locker rooms," and provides guidance on what to do if you think someone is "asserting gender identity for an improper purpose."

Massachusetts laws

MGL c.46 § 13(e) Amending a Birth Certificate
A person who has completed medical intervention for the purpose of permanent sex reassignment may have their birth record amended. As of July 1, 2015, surgery is no longer a prerequisite to getting a new birth certificate.

MGL c.151B Discrimination

St.2011, c.199 An Act Relative to Gender Identity. Protections effective July, 2012.

St.2016, c.134 An Act Relative to Transgender Anti-Discrimination. Fully effective October 1, 2016.
Gives transgender people the right to use restrooms or locker rooms consistent with their gender identities, and includes language to provide "legal action [against] any person whose assertion of a gender identity is for an improper purpose."

Massachusetts regulations

501 CMR 4 Hate crimes

Massachusetts Executive Orders

Executive Order 526  
Extends the state's equal rights protections to gender identity and expression. The order covers state workers and employees of private companies that contract with the state.

City and town bylaws

Amherst, Human Rights Bylaw
" person, public or private, shall be denied any rights guaranteed pursuant to local, state, and/or federal law on the basis of race or color, gender, physical or mental ability, religion, socio-economic status, ethnic or national origin, affectional or sexual preference, gender identity or expression, genetic information, lifestyle, or age."

Boston, Human Rights, Chapter XII, s.12-9
Includes in its protections, "Gender identity or expression shall mean and include a person's actual or perceived gender, as well as a person's gender identity, gender-related self-image, gender-related appearance, or gender-related expression whether or not that gender identity, gender-related self-image, gender-related appearance, or gender-related expression is different from that traditionally associated with a person's sex at birth."

Cambridge, Cambridge Gay Lesbian Bisexual and Transgender Commission, Title 2, c.2.125
Also, Human Rights, c.2.76 defines gender as, "the actual or perceived appearance, expression or identity of a person with respect to masculinity and femininity."

Northampton, Human Rights Commission, s.22-104
Focuses on discrimination "on the basis of race, color, religious creed, national origin, sex, gender identity or expression, sexual orientation, age, ancestry, or disability, marital status, veteran status, receipt of public or housing assistance, or because they have children."

Federal laws and policies

Americans With Disabilities Act (ADA), 42 USC 12211 (b)(1) 
"Under this chapter, the term "disability" shall not include...(1) transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders."

"Dear Colleague Letter," US Dept. of Justice and Dept. of Education, February 22, 2017.
Rescinds requirement for public schools to allow students to use bathrooms appropriate for their gender identity.

Selected cases

Doe v. Yunits et al, 15 Mass. Law Rptr. 278  (2001)
A student with gender identity disorder is not excluded from the definition of "qualified handicapped individual" under the Article CXIV of the Declaration of Rights of the Massachusetts Constitution. Further, requiring Doe to dress in boy's clothing may be considered "a constructive expulsion [if Doe] could not comply with these conditions without endangering her mental health."

Jette v. Honey Farms Mini Market, 23 MDLR 229 (2001)
"Discrimination against transsexuals because of their transsexuality is discrimination based on 'sex' within the meaning of M.G.L. c. 151B," and transsexuality is not "excluded from the definition of 'disability' as a matter of law."

Kosilek v. Spencer, 740 F.3d 733 (2014). 
8th Amendment prohibition against cruel and unusual punishment requires the Dept. of Correction to provide medically necessary sex reassignment surgery.

Lie v. Sky Publishing Corp., 15 Mass. Law Rptr. 412 (2002)
Outlines the difference between transsexual, transgender, and other terms. The plaintiff, a transgender female, established a prima facie case of sex discrimination under MGL c.151B, and discrimination on the basis of handicap.

Millet and MCAD v. Lutco, Inc., 23 MDLR 231 (2001)
While ""transsexuality" is not a "sexual orientation" as that term is defined by M.G.L. c. 151B § 3(6), "We instead hold that "sex" discrimination, as prohibited by chapter 151B, includes a prohibition against discrimination against transsexual individuals."

Rosa v. Park West Bank & Trust, 214 F.3d 213 (2000)
In this First Circuit case, a man who was denied a loan application because he was dressed in women's clothing had established a prima facie case of sex discrimination under the Equal Credit Opportunity Act.

Web sources

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Last update: March 14, 2018


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