Massachusetts law about gender identity or expression

A compilation of laws, regulations, cases, and web sources on gender identity or expression law by the Trial Court Law Libraries.

If you are unable to find the information you are looking for, or if you have a specific question, please contact our law librarians for assistance.

Table of Contents

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.12, § 11I 1/2 Right to access reproductive and gender-affirming health care services; protections against litigation

MGL c. 112, § 275 Bans gay or gender identity conversion therapy for children under 18

A health care provider shall not advertise for or engage in sexual orientation and gender identity change efforts with a patient less than 18 years of age

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.127, § 32A Housing and treatment of inmates with gender identity that differs from assigned sex at birth

MGL c.127, § 39A(c) Segregated units - mental health screening; prohibitions on housing in units
The fact that a prisoner is lesbian, gay, bisexual, transgender, queer or intersex or has a gender identity or expression or sexual orientation uncommon in general population shall not be grounds for placement in restrictive housing.

MGL c.151B Discrimination
Unlawful practices (under section 4) include discrimination in employment, the insurance or bonding business, real estate loans, renting, and credit services.

MGL c.175, § 108N Disability insurance policies; discrimination based upon race, color, religious creed, national origin, sex, pregnancy, gender identity, sexual orientation or marital status prohibited

MGL c.272, § 92A Advertisement, book, notice or sign relative to discrimination; definition of place of public accommodation, resort or amusement
Specifies that this includes restrooms in relation to gender identity.

MGL c.272, § 98 Discrimination in admission to, or treatment in, place of public accommodation

St.2011, c.199 An act relative to gender identity
Amends a number of laws to prohibit discrimination based on gender identity.

St.2016, c.134 An act relative to transgender anti-discrimination
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."

St.2022, c.127 An act expanding protections for reproductive and gender-affirming care

Massachusetts regulations

501 CMR 4 Hate crimes

Massachusetts executive orders

Executive Order 592 Advancing workforce diversity, inclusion, equal opportunity, non-discrimination, and affirmative action

City and town bylaws

Amherst, Human rights bylaw, article 3, page 12
"...No person shall be denied any rights guaranteed pursuant to local, Commonwealth, 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, or age.

Boston, Human rights, chapter XII, § 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, Lesbian, gay, bisexual, transgender, queer, plus commission, Title 2, c.2.125
Also, Human Rights Commission, c.2.76 defines gender identity as, "a person's gender-related identity, appearance or behavior, whether or not that that gender-related identity, appearance or behavior is different from that traditionally associated with the person's physiology or assigned sex at birth."

Northampton, Human rights commission, § A-II-15.0 
Focuses on discrimination “on the basis of race, color, sex, age, religious creed, disability, national origin or ancestry, sexual orientation, gender identity, marital status, family status [having minor children], military status or source of income.”

Somerville, An ordinance securing the rights of individuals seeking gender affirming care and reproductive healthcare

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."

Civil Rights Act of 1964, Title VII
Prohibits employment discrimination on the basis of sex.

"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.

Executive Order signed on January 25, 2021 by President Joe Biden. Enables all qualified Americans to serve in the military.

Selected cases

Bostock v. Clayton County, Georgia, 140 S. Ct. 1731 (2020)
The US Supreme Court held that "an employer who fires an individual merely for being gay or transgender violates Title VII [of the Civil Rights Act of 1964]."

Doe v. Mass. Dept. of Correction, US Dist Ct. Mass, CIVIL ACTION NO. 17-12255-RGS (2018) 
"Jane Doe is a 53-year old transgender woman serving a three- to four-year sentence at MCI-Norfolk for a nonviolent drug offense. ...Although Doe’s GD diagnosis is not disputed, the DOC has housed Doe at MCI-Norfolk, a men’s prison, since October 31, 2016." After a detailed discussion of the treatment of Gender Dysphoria in the ADA, and constitutional issues, the Court denied the Dept. of Correction's motion to dismiss. "As may be apparent from this decision, the court is of the view that Doe may very well prevail on her ADA and Equal Protection claims. " 

Doe v. Yunits et al, 15 Mass. Law Reporter 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, 774 F.3d. 63 (2014) 
Under the 8th Amendment, the DOC's choice of a particular medical treatment--which included hormone therapy, facial and body hair removal, and the prisoner's ability to have access, and to dress in, feminine attire and make-up--was not constitutionally inadequate, and the district court improperly issued an injunction requiring provision of an alternative treatment--surgery--which would have given rise to new concerns related to safety and prison security.

Lie v. Sky Publishing Corp., 15 Mass. Law Reporter 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."

Parents for Privacy vs. Barr, 949 F.3d 1210 (2020), US Supreme Court cert. denied, 141 S. Ct. 894 (2020).
The U.S. Supreme Court chose not to hear an appeal of this case from Oregon that upheld a high school policy that allows transgender students to use the bathroom that corresponds with their gender identity. 

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.

Williams v. Kincaid, U.S. Court of Appeals, Fourth Circuit (2022), WL 3364824
The Americans with Disabilities Act (ADA) protects transgender people from discrimination. The ADA covers “gender dysphoria” a “discomfort or distress that is caused by a discrepancy between a person's gender identity and that person's sex assigned at birth.” This case involves a transgender woman who was placed in a men’s prison where she was denied hormone therapy and suffered harassment. The ruling applies also to workplace and public accommodations.

Web sources

Amend a birth certificate following medical intervention for the purpose of sex reassignment, Mass. Registry of Vital Records and Statistics.
Explains the steps required to amend your birth certificate, with links to the required forms.

Division of Insurance bulletin 2014-03: Guidance regarding prohibited discrimination on the basis of gender identity or gender dysphoria including medically necessary transgender surgery and related health care services, June 20, 2014.

Fact sheet: amendment of a birth certificate following completion of sex reassignment [M.G.L. c. 46, §13(e)], Mass. Registry of Vital Records and Statistics.
Summary of the process of amending a birth certificate.

Guidance for Massachusetts public schools creating a safe and supportive school environment, Mass. Dept. of Elementary and Secondary Education.
"This guidance is intended to help school and district administrators take steps to create a culture in which transgender and gender nonconforming students feel safe, supported, and fully included, and to meet each school's obligation to provide equal educational opportunities for all students, in compliance with G.L. c. 76, §5 and the state regulations."

ID documents center, National Center for Transgender Equality.
"Find out how to get a legal name change where you live and update your name/gender on state and federal IDs and records." Easy to use site provides information for all 50 states plus federal.

Massachusetts allows nonbinary marker on licenses, IDs, Mass. Commission on LGBTQ Youth.
“The “X” marker is available on both driver’s licenses and non-driver state IDs, and is in full compliance with national REAL ID requirements to allow for domestic air travel and other interactions with the federal government.”

Massachusetts birth certificate toolkit, GLAD, 2020.
Step by step directions for changing gender and name on a Massachusetts birth certificate.

Massachusetts Transgender Political Coalition
This group is "dedicated to ending discrimination on the basis of gender identity and gender expression." Their website includes transgender publications and information and forms to change your Massachusetts driver's license/state ID card, Social Security card, passport or birth certificate.

Transgender rights, GLAD.
The site is a gateway to dozens of articles on a variety of topics, including education and health care, with specific information on insurance coverage for gender transition treatment.

Print sources

"Documenting gender," by Dean Spade. 59 Hasting L.J. 731 (2007-2008).
Outlines policies "that govern the recognition of a change in a person's gender by a state or federal administrative agency." 

Gay, lesbian and transgender clients: a lawyers guide, American Bar Association, 2008.

Lesbian, gay, bisexual and transgender family law, West, 2008, with supplement.

Massachusetts employment law, 5th edition, MCLE, loose-leaf.
Chapter 13, Gender identity discrimination.

"The (mis)categorization of sex in Anglo-American cases of transsexual marriage," by John Parsi. 108 Mich. L. Rev.1497 (2010).
The "lack of national uniformity [in changing birth certificates] makes post-operative transsexuals' recognition of their acquired sex complicated at best and impossible at worst."

"Sexual and gender variation in American public law: from malignant to benign to productive," by William N. Eskridge, Jr. 57 UCLA L. Rev. 1333 (2010). 

Sexual orientation, gender identity, and the law in a nutshell, West Academic Publishing, 2022.

Transgender family law: a guide to effective advocacy, AuthorHouse, 2012.

Transgender persons and the law, ABA, 2015.

Transgender persons & the law, MCLE, 2016.


Last updated: December 9, 2022