Labor & Employment

States, Feds Ponder 'Gender ID' Bills

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Gender identity isn’t a phrase that traditionally comes up in everyday conversation. But it’s a hot topic among lawmakers and lobbyists these days, as both Congress and a growing number of states consider legislation to make discrimination based on gender identity illegal.

At this point, it isn’t completely clear what conduct, exactly, would be prohibited by such legislation, which includes a proposed bill now before the Senate, the Matthew Shepard Local Law Enforcement Hate Crimes Prevention Act, named in honor of a 21-year-old student murdered in Wyoming in 1998. Fears that such legislation would infringe on Constitutional guarantees of religious freedom and free speech are one reason why some, including conservative Christian groups, oppose it, according to the Fort Worth Star-Telegram and the Christian Post. However, some Christian groups also support the legislation, the Fort Worth, Texas, paper points out.

Meanwhile, 12 states (most recently, Colorado, New Jersey and Oregon) have enacted similar bills or added anti-gender identity discrimination provisions to existing laws, notes an editorial in the National Law Journal. Its guest author, Alan I. Model, is a shareholder in the Newark, N.J., office of Littler Mendelson national employment boutique.

He recommends that employers concerned about compliance update their anti-harassment and equal employment policies to prohibit discrimination based on gender identity or expression and train management and employees about new expectations and how to address new issues that may arise, such as traditional application of dress codes and the use of restrooms and locker rooms.

Employers should assume, Model writes, “that all individuals, regardless of whether their appearance fits into what is traditionally viewed as masculine or feminine, or into the gender into which they were born, may be covered by the law. … Employers must understand that the question is not if they will have to deal with these issues—but when.”

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