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New Jersey Adds "Gender Identity and Expression" as a Protected Category Under State Civil Rights Law

  • December 20, 2006

New Jersey has joined the ranks of only a handful of states in adding "gender identity and expression" as a protected category to its primary civil rights law, the "Law Against Discrimination." The amendments to the LAD were enacted on December 19, 2006, and they apply to protect individuals from such discrimination in employment, housing, insurance and other areas. The change to the law becomes effective 180 days after enactment (June 17, 2007).

The expansion to the existing prohibitions against discrimination will make it an unlawful employment practice or unlawful discrimination for an employer to refuse to hire, to discharge, or to otherwise discriminate against employees or applicants on the basis of their gender identity or expression. "Gender identity or expression" is defined as "having or being perceived as having a gender related identity or expression whether or not stereotypically associated with a person's assigned sex at birth." The definition refers to transgender individuals, or those who have been assigned one biological gender, usually at birth and based on their genitals, but feel that gender is a false or incomplete description of who they are. Transgender individuals include transsexuals (people who strongly identify with being a member of the opposite biological sex and may seek to live as a member of that sex by undergoing surgery and/or hormone therapy to obtain the necessary physical appearance), transvestites (people who adopt the dress and often the behavior typical of the opposite sex but, unlike transsexuals, do not wish to change sexes) and those who appear androgynous (people who identify as neither specifically masculine nor specifically feminine).

The amendment treats gender identity or expression as separate from sexual orientation, which is also a protected characteristic under the LAD. Sexual orientation refers to an individual's attraction to others, while gender identity or expression refers to an individual's own identity or expression.

The change to the LAD is largely a codification of a 2001 New Jersey Superior Court Appellate Division decision which established that the LAD's prohibition of sex discrimination extends to discrimination against transsexuals and other transgender individuals. Enriquez v. W. Jersey Health Sys., 342 N.J. Super. 501 (App. Div. 2001), cert. denied, 170 N.J. 211 (2001). In Enriquez, a doctor was undergoing a change via hormone therapy and surgery from male to female. The employer refused to renew the doctor's contract because of the changes the doctor was undergoing. The doctor sued, alleging sexual orientation and handicap discrimination under the LAD, among other things. The trial court rejected the sexual orientation claim, pointing out that the doctor was originally a male, was married to a female, was not gay, and was not accused of or perceived as being gay. The Appellate Division affirmed that portion of the trial court's opinion.

However, the Appellate Division found that the doctor was discriminated against because of sex in violation of the LAD. The court said,

It is incomprehensible to us that our Legislature would ban discrimination against heterosexual men and women; against homosexual men and women; against bisexual men and women; against men and women who are perceived, presumed or identified by others as not conforming to the stereotypical notions of how men and women behave, but would condone discrimination against men or women who seek to change their anatomical sex because they suffer from a gender identity disorder.

The court referred to Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), a U.S. Supreme Court decision where an employer was found to have illegally discriminated against a female employee for being "too masculine," as an example of how even under Title VII, courts are recognizing causes of action for discrimination based on gender roles and identity.

This change to the LAD has the potential to raise many issues in the workplace. For example, a similar law in Minnesota led to a lawsuit about which restroom a transgender employee should use. Goins v. West Group, 635 N.W.2d 717 ( Minn. 2001). In Goins, an employee who was born biologically male but who identified as female legally changed his name to a woman's and had a state court declare his legal gender to be female. After beginning a new job, the employee insisted on using the women's restroom at work. Some female colleagues complained, and the employer was forced to balance the potential for litigation from the colleagues, who the employer felt were making a hostile work environment complaint, with the potential for litigation from the transgender employee. The employer adopted a policy stating that employees must use the restroom according to their "biological gender," and instructed the transgender employee to use the men's restroom. The transgender employee quit and then sued under the Minnesota Human Rights Act, alleging that the policy was illegally discriminatory, that it created a hostile work environment, and that the way the employer acted caused the employee undue stress and hostility. The Minnesota Supreme Court ultimately decided that the HRA was not violated and permitted the employer to use its discretion in creating a restroom use policy such as the one here.

Although the Minnesota court sided with the employer in Goins, the case illustrates the potential implications of the New Jersey law. Employers should be on guard not only for more blatant forms of discrimination against transgender employees by their colleagues, but should also evaluate all human resources and personnel policies where this change to the LAD could become an issue in ways not readily apparent. Jackson Lewis attorneys are available to counsel employers on this change and review its implications for human resources policies and practices.

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