Call Me Rachael: New York City Issues New Guidance on Gender Identity Rules
New York City’s Commission on Human Rights issued a document entitled “Legal Enforcement Guidance on the Discrimination on the Basis of Gender Identity or Expression: Local Law No. 3” on December 21. The Commission enforces the City’s ban on discrimination in public accommodations, housing and employment based on gender.

Gender is defined as a person’s “actual or perceived sex and shall also include a person’s gender identity, self-image, appearance, behavior or expression, whether or not that gender identity, self-image, appearance, behavior or expression is different from that traditionally associated with the legal sex assigned to that person at birth.”

The Guidance contains several interesting admonitions . The Commission now requires employers and landlords to use an individual’s preferred name, pronoun and title (Mr. or Ms.), regardless of the person’s sex assigned at birth. This requirement applies even if the person does not have proper identification in the preferred name or has never sought a name change. The Commission suggests that to avoid violations of the law, covered entities should employ a policy of asking everyone what their preferred gender pronoun is, so that no individual is singled out.

The Guidance Document also states that it will be a violation of the law to refuse to allow individuals to utilize single-sex facilities consistent with their gender identity. Specifically, an individual must be permitted to use single-sex facilities, such as bathrooms or locker rooms, consistent with their gender identity, regardless of their sex assigned at birth. For example, if a person who was born male, now identifies as female, that person cannot be prohibited from using the women’s rest room.  The Commission notes that the law does not require entities to make existing bathrooms all-gender or construct additional restrooms, but if they have single-occupancy restrooms, they have to make it clear that people of all genders can use them.

Another interesting section is the one on uniforms and grooming standards. The Commission states that employers and covered entities may not require dress codes or uniforms that impose different requirements for individuals based on sex or gender. This would prohibit a standard that bars men from wearing make-up or jewelry at work or one that requires that women wear skirts. One of the specific examples the Commission cites as a violation is permitting female, but not male residents at a drug treatment facility to wear wigs and high heels. And, of special interest to this writer, it is now illegal for a New York City restaurant to require all men to wear ties in order to dine there.

The Commission also includes sections on equal provision of employee benefits, regardless of gender identification and prohibitions on retaliatory actions for reporting violations of the act. The City law has some teeth:  the Commission can impose civil penalties of up to $125,000 for violations and up to $250,000 for violations that are the result of willful, wanton or malicious conduct.

While this document is obviously much more far-reaching than one would expect to see in other areas of the country, it is a sign that gender identity rights and issues will be a focus going forward. As we have seen in actions taken by the federal government for contractors and in EEOC enforcement, an employer cannot simply ignore these areas.