NY bans discrimination based on gender identity, expression

UPDATE: Jan. 28, 2019: Governor Andrew Cuomo signed the Gender Expression Non-Discrimination Act into law Friday, the governor's office announced.

Dive Brief:

The New York State Assembly passed a bill Tuesday outlawing discrimination on the basis of gender identity or gender expression in the workplace. The bill, signed by the New York State Senate on Jan. 15, is expected to be signed into law by Gov. Andrew Cuomo.
Titled the Gender Expression Non-Discrimination Act (GENDA), the bill defines "gender identity or expression" as "a person's actual or perceived gender-related identity, appearance, behavior, expression, or other gender-related characteristic regardless of the sex assigned to that person at birth, including, but not limited to, the status of being transgender." GENDA amends New York's Human Rights Law, extending its employment discrimination protections — among others — to transgender and non-gender conforming individuals, according to a statement from the Assembly.
In 2015, Cuomo issued statewide regulations banning discrimination and harassment, including in the employment context, against transgender individuals. Those regulations were later adopted in 2016, but did not involve action on the part of the state's legislature. New York will join at least 21 other states and the District of Columbia in prohibiting employment discrimination on the basis of gender identity, according to the civil rights organization Human Rights Campaign.

Dive Insight:

Discrimination based on sexual orientation and gender identity continues to be a state-by-state employment law issue, with stagnation at the federal level failing to provide clarity for employers.

Even federal courts remain split on both points, but to varying degrees. The U.S. Court of Appeals for the 6th Circuit held in Aimee Stephens v. R.G. &. G.R. Harris Funeral Homes, Inc. that discrimination against employees, either because of their failure to conform to sex stereotypes or their transgender and transitioning status, is prohibited by Title VII of the Civil Rights Act of 1964. Rulings from the 2nd and 7th Circuits say that Title VII prohibits discrimination on the basis of sexual orientation, but the 11th Circuit has ruled oppositely. The U.S. Supreme Court has so far declined to address the issue, so the split has yet to be resolved.

These issues have also caused conflict among federal agencies, particularly between the U.S. Department of Justice (DOJ) and the U.S. Equal Employment Opportunity Commission (EEOC). The agencies filed conflicting briefs in the 6th Circuit case, and take an opposing view of the definition of "sex" in the language of Title VII. DOJ argues the phrase does not refer to gender identity, while EEOC has argued the opposite. DOJ also contends that the circuit split over the gender identity issue is not as "deep" as that over the sexual orientation issue; if the Supreme Court refuses to grant certiorari to cases on the latter form of discrimination, DOJ argues the Court should not do so for cases on the former.

Many employers, nonetheless, are adopting inclusive strategies for employees who identify as part of the LGBTQIA community. For transgender individuals, some businesses are rolling out new benefits packages to help workers afford surgery and other medical procedures needed to complete a gender transition.