The New York City Commission on Human Rights (the “Commission”) has adopted new rules (“Rules”) which establish broad protections for transgender, non-binary, and gender non-conforming individuals. The Rules, which define various terms related to gender identity and expression, re-enforce recent statutory changes to the definition of the term “gender,” and clarify the scope of protections afforded gender identity status under the New York City Human Rights Law. New York State also just added gender identity and expression as protected classifications under the state Human Rights Law, following the adoption of the Gender Expression Non-Discrimination Act.
The Rules incorporate key pieces of community feedback following a public hearing on the proposed rules. Most notably, the Rules have been updated to explicitly include non-binary identities. Under the Rules, “non-binary” is defined as “a term used to describe a person whose gender identity is not exclusively male or female. For example, some people have a gender identity that blends elements of being a man or a woman or a gender identity that is neither male nor female.” Furthermore, non-binary individuals are now also included in the Rules’ examples section, which illustrates possible violations of the prohibition on discrimination based on gender. For instance, deliberately using the pronoun “he” for a non-binary person who is perceived as male but has indicated that they identify as non-binary and use the pronouns “they,” “them,” and “theirs” is identified as an example of misusing individual’s chosen name, pronoun, or title, along with deliberately calling a transgender woman “Mr.” after she has made clear that she uses female titles.
The Commission has also added a list of terms typically associated with gender expression, such as “androgynous,” “butch,” “feminine,” “femme,” “gender non-conforming,” and “masculine,” to the existing definition of gender expression. Terms associated with gender identity, such as “agender,” “bigender,” “woman,” “gender diverse,” “gender fluid,” “gender queer,” “man,” “man of trans experience,” “pangender,” and “woman of trans experience” have similarly been added to the definition of gender identity.
While the Rules have added some important language, the key takeaways remain the same. As the proposed rules initially laid out, deliberate misuse of an individual’s chosen name, pronoun, or title, refusing to allow individuals to use single-sex facilities or participate in single-sex programs consistent with their gender identity, imposing different dress or grooming standards based on gender, and refusing a request for accommodation on the basis of gender will all be considered violations under the Rules. Additionally, covered entities must provide equal employee benefits, regardless of gender, such as ensuring that the health plans they offer provide gender-affirming care.
The Rules will go into effect March 9, 2019.