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Gender Identity Gains Protection

April 9, 2007

New Jersey Law Journal

NJLAD amendment likely to spawn litigation over who's included in protected class

Governor Jon Corzine recently signed a bill amending and further expanding the protections afforded individuals under the New Jersey Law Against Discrimination (NJLAD), N.J.S.A. 10:5-1, et seq. New Jersey will now join ranks with seven other states and the District of Columbia, which provide statutory protections for employees based upon "gender identity or expression." This new law takes effect on June 17, 2007, and will prohibit discrimination against an individual based upon that person's "gender identity or expression," which 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."

This recent amendment was an attempt by the New Jersey Legislature to codify the Appellate Division's decision in Enriquez v. West Jersey Health Systems, 342 N.J. Super. 501 (App. Div.), cert. den. 170 N.J. 211 (2001), a case of significant import given that the Appellate Division held that the NJLAD was to be interpreted expansively to include gender dysphoria or transsexualism as both a disability and a form of gender discrimination. Indeed, at the time of this decision, most federal courts had declined to hold that transsexuals fall within the class of persons afforded protection under Title VII of the Civil Rights Act, 42 U.S.C.A. 2000e (Title VII). In fact, it was only recently that the Court of Appeals for the Sixth Circuit held that discrimination against transsexuals is a form of sex discrimination violative of Title VII. See, Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004). Moreover, the Americans with Disabilities Act ("ADA") contains an express exemption which provides that transvestites, transsexuals and persons suffering from gender dysphoria are not defined as disabled individuals.

Enriquez is the first case in which the New Jersey Appellate Division recognized that transsexuals or those suffering from gender dysphoria were entitled to protection under the NJLAD. In that case, the plaintiff, a male-to-female transsexual, alleged she had been discriminatorily discharged in violation of the NJLAD's prohibition against discrimination based upon sexual orientation, gender and disability. In addressing these novel issues, the Appellate Division rejected the notion that plaintiff's gender identity constituted affectional or sexual orientation discrimination. Since the statutory definition of affectional or sexual orientation "refers to one's relations with others and not to his or her own sexual identity," the court held that only homosexuals, bisexuals or persons perceived to be homosexual or bisexual can be subjected to discrimination on account of affectional or sexual orientation. In view of the plaintiff's admission that she was not gay, was never perceived as a homosexual or bisexual, and was not attracted to individuals of the same sex, the court concluded that she could not assert a claim for affectional or sexual orientation discrimination under the NJLAD.

However, in evaluating whether the plaintiff had stated a cause of action for gender discrimination, the court noted that, although the NJLAD explicitly prohibits "sex" discrimination, it is silent on whether "gender" discrimination is similarly prohibited. For the Enriquez court, there was a conceptual difference between the term "sex," which generally tefers to "whether a person is male or female," and the term "gender," which refers to "whether a person has qualities that society considers masculine or feminine."

The court analyzed federal precedent, noting that the federal courts had historically and unanimously rejected the argument that gender dysphoria constitutes sex discrimination. The Appellate Division, however, declined to follow federal law, and ruled that the NJLAD was to be construed liberally, stating: "[i]t 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 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."

In addition, the court agreed with the plaintiff's assertion that gender dysphoria was a protected disability under the NJLAD because it constituted a "mental, psychological or developmental disability resulting from anatomical, psychological, physiological or neurological conditions demonstrable, medically or psychologically, by accepted clinical or laboratory diagnostic techniques."

Recognizing the expansive view of what constitutes a disability under New Jersey's law, the Court found persuasive the fact that gender dysphoria is a gender identity disorder listed in the Diagnostic and Statistical Manual of Mental Disorders, (4th ed. 1994) (DSM-IV). Although the Court acknowledged that the listing in the DSM-IV was not dispositive of the issue, the court determined that "gender dysphoria is a recognized mental or psychological disability that can be demonstrated psychologically by accepted clinical diagnostic techniques and qualifies as a handicap under the LAD."

In holding that gender dysphoria was a legally cognizable disability, the court distinguished the NJLAD from the ADA, which specifically excludes from protection those gender identity disorders not resulting from physical impairments. Not only does the ADA have an express exemption for such disorders, but, the ADA requires that, in order to constitute a disability, the impairment must be one which substantially limits a major life activity, a restriction not included in the NJLAD. Applying this reasoning, the Court reversed the trial court's holding that gender dysphoria was not a handicap under the NJLAD and remanded the matter for trial.

The Legislature's attempt to codify the Enriquez holding by the addition of "gender identity or expression" as a protected class under the NJLAD will have certain ramifications for employers when it becomes effective in June. Certainly, this amendment expands the potential risks for employers since it will now be considered an unlawful employment practice for an employer to discriminate against an employee based upon an individual's gender identity or expression. But, the new amendment appears far broader that the Court's decision in Enriquez. Unlike Enriquez, where the plaintiff was a transsexual diagnosed with gender dysphoria, the language of the new amendment is not so limited, and an individual is afforded the statutory protections so long as the individual has or is merely "perceived as having a gender related identity or expression whether or not stereotypically associated with a person's assigned sex at birth." Inasmuch as the legislative history on this new amendment is silent about who is specifically afforded protection under the NJLAD, one can only surmise that this amendment will spawn litigation over precisely who falls within this protected class.

It is also evident that this new amendment will require employers to take a number of affirmative steps to mitigate the risk of employment litigation by transsexuals. At the outset, New Jersey employers should immediately review and revise antidiscrimination and harassment policies, as well as other equal employment policies within employment manuals and handbooks to include gender identity or expression as an additional protected class. Likewise, annual training programs should be updated to prohibit any discriminatory practices, or harassment based upon a person's gender identity or expression.

There are more subtle implications that employers of individuals who identify or express themselves with the opposite sex will need to confront. In fact, although the amendment does "not affect the ability of an employer to require employees to adhere to reasonable workplace appearance, grooming and dress standards not precluded by other provisions of State or federal law," employers must permit employees to "appear, groom and dress consistent with the employee's gender identity or expression." Thus, employment lawyers should also counsel their clients to review dress code policies to ensure compliance with the new law.

Additionally, while the NJLAD provides that places of public accommodation may restrict certain facilities to members of one sex, such as restrooms and locker rooms, the new amendment mandates that individuals who express or identify themselves as members of the opposite sex must be admitted to such facilities in accordance with their gender identity or expression. Thus, restroom and locker room facilities must be accessible to such individuals, even if they have not elected to proceed with the gender reassignment surgery.

Finally, employers should also be cautioned that, to the extent an employee suffers from gender dysphoria, the employer may be required to provide the employee with a reasonable accommodation under the NJLAD. Indeed, as the Enriquez Court noted, gender dysphoria is a recognized medical condition for which treatment is available and medically recognized. Consequently, employers, where necessary, should engage in the interactive process to accommodate efforts by transsexuals to obtain treatment, even if that treatment will require the employee to begin identifying with the opposite sex or to undergo a sex reassignment surgery.



This article is reprinted with permission from the APRIL 9, 2007 Issue of the New Jersey Law Journal. ©2007 ALM Properties, Inc. Further duplication without permission is prohibited. All rights reserved.



Catherine P. Wells is a member of the employment law group and Margaret O'Rourke Wood is an associate in the litigation department at Wolff & Samson PC of West Orange.