Sex Discrimination Based on Gender Identity, Gender Expression Discrimination, or Transgender Identity Discrimination
Discrimination is the prejudice, bias or unfair treatment towards an individual due to some personal characteristic. Discrimination against transgender individuals is more than just mistreatment; it can be pervasive and highly destructive throughout one’s life. Transgender individuals are almost four times more likely to experience sexual assault when compared with other LGBT people.
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Employment Lawyers Helping LGBTQ Workers Understand Their Rights
Employment rights attorneys at Leeds Brown Law, P.C., representing clients in New York, help individuals who experience discrimination in the workplace. We are proud that we live and practice in a state that is often at the forefront of employment rights legislation, providing workers with protections that go above and beyond what federal laws require. New York City, in particular, has a strong history of ensuring that as many people as possible enjoy freedom from discrimination and receive equal treatment during the entire employment process. At Leeds Brown, we are passionate about holding individuals and businesses responsible when they violate these rights.
To be covered by discrimination laws, you must possess the characteristics that receive protection. For example, Title VII of the Civil Rights Act of 1964 prohibits employment discrimination because of an individual’s race, color, sex, religion, and national origin. The Pregnancy Discrimination Act prohibits discrimination against someone because of pregnancy. The Americans with Disabilities Act does the same for disabled individuals. So, if you experience discrimination because of your race, color, sex, religion, pregnancy, disability or national origin, you may have the right to file a claim under the appropriate federal law.
Over time, cases have emerged that blur the lines of what defines these characteristics. For example, is being a member of any religion protected? How do you define a religion? Is a mental illness considered a disability? What about addiction?
Similar questions often arise in cases of employment discrimination against LGBT individuals. Leeds Brown attorneys have extensive experience analyzing and understanding what laws can be used to support LGBT workers when they don’t always fall squarely into a protected category.
Attorneys Understand the Rights of LGBT Employees
An area that has recently become “controversial” is the characteristic of sex. Historically, prohibiting employment discrimination because of sex meant simple gender- being male or female. An employer could not make an employment-related decision based on a person being a man or woman. Sexually harassing someone at work is also sex discrimination.
As society evolves, issues have emerged that call into question whether Title VII should be amended to include provisions that protect employees from discrimination based on sexual orientation and sexual identity. Studies have shown that transgender individuals, in particular, face extreme discrimination when it comes to getting hired and severe harassment during employment. So far, Congress has made no changes.
However, cases involving discrimination against employees based on sexual orientation and gender identity sometimes fall under the sex discrimination language of Title VII, and a victim can make a solid case against an employer. For example, not hiring a transgender man because he does not conform to your views on what a man should look like, may be unlawful sex discrimination under Title VII. Harassing a lesbian worker because she acts in a way that you think is unfeminine may also be illegal.
New York Protects Workers from Discrimination Because of Sexual Orientation
The Sexual Orientation Non-Discrimination Act (SONDA) went into effect in 2003 making it illegal for an employer in New York to discriminate against an individual because of his or her sexual orientation, whether it is perceived or actual. New York also prohibits employment discrimination because of marital status which provides added protection for same-sex couples.
SONDA does not address discrimination against individuals based on gender identity or expression. For these reasons, SONDA only protects transgender people if they face discrimination because of their real or perceived sexual orientation.
New York State Human Rights Law Prohibits Employment Discrimination Because of Sexual Identity and Gender Expression
New York State Human Rights Law (NYSHRL) prohibits employment discrimination based on gender identity which includes someone who is transgender. Regulations also specifically include transgender status in the term “sex” when considering employment discrimination. Discrimination or harassment based on transgender status or gender identity is unlawful sex discrimination in New York.
New York City Human Rights Law Protects LGBTQ Employees
The New York City Human Rights Law (NYCHRL) also provides specific rights to workers and applicants who experience discrimination and harassment because of their real or perceived gender identity or expression. The New York City Human Rights Commission issued guidance to employers to help them navigate the new rules as they apply to their workplace. The guidance states that under NYCHRL “which prohibits discrimination on the basis of gender identity, gender expression, and transgender status or for being intersex, gender discrimination occurs whenever one is treated less well than others on account of their gender.”
Violations of NYCHRL in this context may include:
- Refusing to refer to a worker using the preferred pronoun that conforms to their gender identity despite the sex assigned at birth.
- For example, continuing to call a transgender woman “he” or “him” despite being asked to be called “she” violates NYCHRL. So does calling a woman “he” because she does not confirm with your version of what it means to be female.
- Refusing to use an employee’s preferred name because it does not match the name on legal identification.
- Calling Michael, a transgender man, Michelle because that’s what is on his driver’s license, violates NYCHRL.
Refusing use of a same-sex bathroom that conforms to the person’s gender identity regardless of the individual’s appearance or sex assigned at birth.
- You must allow a transgender man to use the men’s room and a transgender woman to use the ladies room. Forcing a transgender employee to use a single-occupancy bathroom is unlawful.
- Imposing grooming or dress policies that are different for men and women, such as men may not wear jewelry or makeup to work, or woman may not wear pants, violates NYCHRL.