In anticipation of these bills going into effect, employers should review policies and practices related to discrimination to ensure they reflect the protections afforded by the new laws and update policies and procedures, if necessary.

On January 15, 2019, the New York State Senate passed two historic bills that strengthen protections for transgender people.

The Gender Expression Non-Discrimination Act (GENDA) amends the New York Human Rights Law and civil rights, education, penal and criminal procedure laws to prohibit discrimination based on gender identity or expression. It also categorizes any offense related to gender identity or expression as a hate crime. Gender identity or expression is defined as “a person’s actual or perceived gender-related identity, appearance, behavior, expression, or other gender-related characteristic regardless of the sex assigned to that person at birth, including, but not limited to, the status of being transgender.”

Senate Bill S1046 amends the education law to prohibit licensed mental health professionals from engaging in sexual orientation change efforts, commonly known as conversion therapy, with patients under 18 years of age. Any attempts to do so would subject the provider to discipline by the provider’s licensing entity.

Democrats passed GENDA in the New York Assembly 11 times over the last 16 years, but were repeatedly blocked in the Senate by the Republican majority. This time, though, Democrats were finally able to pass GENDA through both chambers due to the dramatic change in the Senate’s composition during the 2018 election. Governor Andrew M. Cuomo is expected to sign the bills shortly, as he is a strong supporter of the laws and has issued a number of orders in recent years extending protections to transgender people. Senate Bill S1046 will go into effect immediately once signed. With the exception of the penal and criminal procedure law amendments, GENDA will go into effect 30 days after being signed.

What Does This Mean for Employers?

In anticipation of these bills going into effect, employers should review policies and practices related to discrimination to ensure they reflect the protections afforded by the new laws and update policies and procedures, if necessary. Employers should also educate and train managers and supervisors regarding transgender-related issues, including, for example:

• Dress codes: Federal, state and local laws vary from permitting employers to require varying dress codes based on gender, so long as they do not impose an undue burden, to prohibiting any differing dress codes or appearance standards based on gender. GENDA likely imposes strict standards similar to those of New York City where, for example, it would be unlawful to allow female but not male employees to wear wigs and high heels, or to require all male employees to wear ties.
• Bathroom usage: Where no New York state law previously addressed bathroom usage, under GENDA, failure to reasonably accommodate requested and necessary accommodations—such as permitting transgender employees to use a single-sex bathroom appropriate to their gender identity—may constitute discrimination. Employers may also need to allow certain additional reasonable accommodations for transitioning employees when requested. New York City law requires employers to permit employees, customers and the like to use single-gender facilities, such as restrooms or locker rooms, and to participate in single-gender programs that most closely align with their gender identity or expression. Employers may provide single-occupancy facilities as an alternative, but cannot force employees to use such facilities based on their status as transgender.
• Appropriate pronoun usage: Similar to New York City law, GENDA likely requires employers to address employees with their preferred pronoun or name when requested to do so. For example, repeatedly referring to a transgender man as “she,” “her” or “Mrs.” after he has clearly stated his preference for “he,” “him” or “Mr.” most likely amounts to discrimination.

For More Information

If you have any questions about this Alert, please contact Eve I. Klein, any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group or the attorney in the firm with whom you are regularly in contact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.