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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.
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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. 

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."

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
"...no 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. 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 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, 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 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

Amend a birth certificate following medical intervention for the purpose of sex reassignment, 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)], Vital Records
Summary of the process of amending a birth certificate.

Massachusetts Birth Certificate Toolkit, GLAD, 2015.
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.  

Nondiscrimination on the Basis of Gender Identity: Guidelines for Massachusetts Public Schools, Mass. Dept. of 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."

Transgender Rights, GLAD
The site is a gateway to dozens of articles on a variety of topics, including education and health care.

Print sources

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Last updated: June 21, 2018

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