Gender Identity Legislation Introduced Again

by Pessin Katz Law, P.A.

After a 6-5 committee defeat in last year’s legislative session, Sen. Richard S. Madaleno, Jr. (D-Mont. Co.) has introduced the Fairness for All Marylanders Act of 2014 or “FAMA” (SB212) which is a reiteration of the 2013 version of the proposed law.  The Bill has garnered widespread legislative support and is actively supported in the LGBT community.

The legislation is designed to prevent discrimination based on gender identity with regard to public accommodations, housing, and employment.  Among other issues, it would prohibit discrimination based on gender identity by certain licensed or regulated persons; discrimination based on sexual orientation or gender identity with regard to the leasing of property for commercial usage or in the provision of certain services or facilities.  It would make certain remedies and procedures regarding discrimination applicable to discrimination based on sexual orientation and gender identity; and it requires certain State personnel actions to be made without regard to gender identity or sexual orientation.  As such, the bill contains a definition of the term “gender identity”: “’GENDER IDENTITY’ MEANS A GENDER–RELATED IDENTITY, APPEARANCE, EXPRESSION, OR BEHAVIOR OF AN INDIVIDUAL REGARDLESS OF THE INDIVIDUAL’S ASSIGNED SEX AT BIRTH.”

Discrimination in public accommodations, labor and employment, and housing on the basis of race, sex, age, creed, color, religion, national origin, marital status, disability, and sexual orientation is prohibited.  Prior Maryland legislation added a prohibition against discrimination in public accommodations, labor and employment, and housing on the basis of sexual orientation to the prior list of prohibitions. However, that legislation did not specifically prohibit discrimination in State personnel actions on the basis of sexual orientation.

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of race, color, religion, sex, or national origin. Transgender individuals have brought suit alleging “sex discrimination” under Title VII, often basing their claims on Price Waterhouse v. Hopkins 490 U.S. 228 (1989), a Supreme Court case that held that harassment directed at a person because that person does not conform to traditional sex stereotypes is a form of sex discrimination prohibited by Title VII.  In Price Waterhouse, however, the plaintiff was not a transgender individual, but a woman who was denied promotions because she lacked stereotypical femininity.

Few courts have accepted the claim that transgender discrimination is a form of sex discrimination. In 1977, the United States Court of Appeals for the Ninth Circuit held that Title VII did not extend protection to transsexuals, reasoning that Congress’ purpose in enacting the statute was only to ensure that men and women are treated equally. Holloway v. Arthur Andersen & Co., 566 F.2d 659, 663 (9th Cir. 1977).   A few years later, the U.S. Court of Appeals for the Seventh Circuit held that discrimination based on sex means only that “it is unlawful to discriminate against women because they are women and against men because they are men,” and that Title VII was never intended to apply to anything other than the traditional concept of sex. Ulane v. Eastern Airlines, 742 F.2d 1081, 1085 (7th Cir. 1981).

More recently, the Tenth Circuit Court of Appeals also held that because “sex” means nothing more than “male and female,” the statute only extends protection to transsexual employees if they are discriminated against because they are male or because they are female. Etsitty v. Utah Transit Authority, 502 F.2d 1215, 1222 (10th Cir. 2005).

In 2008, the U.S. District Court for the District of Columbia heard a claim of employment discrimination by a transgender person. In response to the plaintiff’s claim of sex stereotyping, the court agreed that “when the plaintiff is transsexual, direct evidence of discrimination based on sex stereotypes may look a great deal like discrimination based on transsexuality itself, a characteristic that, in and of itself, nearly all federal courts have said is unprotected by Title VII.” However, the court found in favor of the plaintiff on the sex discrimination claim because it held that the refusal to hire the plaintiff after being advised that she planned to change her anatomical sex was, in fact, discrimination because of sex. Schroer v. Billington, 577 F. Supp.2d 293 (D.D.C. 2008).

To date, at least 17 states (California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington) and the District of Columbia have passed laws prohibiting discrimination based upon gender identity. In addition, over 140 local jurisdictions, including Atlanta, Boston, Dallas, New Orleans, New York City, and Philadelphia, prohibit gender identity discrimination.

Since 2002, Baltimore City has prohibited discrimination based upon gender identity and expression in employment, public accommodations, education, and housing. In November 2007, the Montgomery County Council amended the County Code to include gender identity as a covered basis under county law prohibiting discrimination in employment, housing, cable television services, and taxicab services. Howard County adopted a law in 2011 prohibiting discrimination based on gender identity and expression in housing, employment, law enforcement, public accommodations, and financing.

Baltimore County voted in February 2012 to adopt a law prohibiting discrimination based on gender identity in housing, employment, finance, and public accommodations.

Governor O’Malley issued an executive order in August 2007 that included gender identity and expression as a proscribed basis for employment discrimination.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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