PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:
Proposed Action:
Addition of section 466.13 to Title 9 NYCRR.
Statutory authority:
Executive Law, section 295.5
Subject:
Gender Identity Discrimination.
Purpose:
To clarify how gender identity discrimination may constitute either sex or disability discrimination under the Human Rights Law.
Text of proposed rule:
A new Section 466.13 is added to read as follows:
466.13 Discrimination on the basis of gender identity.
(a) Statutory Authority. Pursuant to N.Y. Executive Law § 295.5, it is a power and a duty of the Division to adopt, promulgate, amend and rescind suitable rules and regulations to carry out the provisions of the N.Y. Executive Law, article 15 (Human Rights Law).
(b) Definitions.
(1) Gender identity means having or being perceived as having a gender identity, self-image, appearance, behavior or expression whether or not that gender identity, self-image, appearance, behavior or expression is different from that traditionally associated with the sex assigned to that person at birth.
(2) A transgender person is an individual who has a gender identity different from the sex assigned to him or her at birth.
(3) Gender dysphoria is a recognized medical condition related to an individual having a gender identity different from the sex assigned to him or her at birth.
(c) Discrimination on the basis of gender identity is sex discrimination.
(1) The term “sex” when used in the Human Rights Law includes gender identity and the status of being transgender.
(2) The prohibitions contained in the Human Rights Law against discrimination on the basis of sex, in all areas of jurisdiction where sex is a protected category, also prohibit discrimination on the basis of gender identity or the status of being transgender.
(3) Harassment on the basis of a person’s gender identity or the status of being transgender is sexual harassment.
(d) Discrimination on the basis of gender dysphoria is disability discrimination.
(1) The term “disability” as defined in Human Rights Law § 292.21, means (a) a physical, mental or medical impairment resulting from anatomical, physiological, genetic or neurological conditions which prevents the exercise of a normal bodily function or is demonstrable by medically accepted clinical or laboratory diagnostic techniques or (b) a record of such an impairment or (c) a condition regarded by others as such an impairment, provided, however, that in all provisions of this article dealing with employment, the term shall be limited to disabilities which, upon the provision of reasonable accommodations, do not prevent the complainant from performing in a reasonable manner the activities involved in the job or occupation sought or held.
(2) The term “disability” when used in the Human Rights Law includes gender dysphoria.
(3) The prohibitions contained in the Human Rights Law against discrimination on the basis of disability, in all areas of jurisdiction where disability is a protected category, also prohibit discrimination on the basis of gender dysphoria.
(4) Refusal to provide reasonable accommodation for persons with gender dysphoria, where requested and necessary, and in accordance with the Divisions regulations on reasonable accommodation found at 9 NYCRR § 466.11, is disability discrimination.
(5) Harassment on the basis of a person’s gender dysphoria is harassment on the basis of disability.
Text of proposed rule and any required statements and analyses may be obtained from:
Edith Allen, Administrative Aide, Division of Human Rights, One Fordham Plaza, 4th Floor, Bronx, New York 10458, (718) 741-8398, email: eallen@dhr.ny.gov
Data, views or arguments may be submitted to:
Caroline J. Downey, General Counsel, Division of Human Rights, One Fordham Plaza, 4th Floor, Bronx, New York 10458, (718) 741-8402, email: cdowney@dhr.ny.gov
Public comment will be received until:
45 days after publication of this notice.
Regulatory Impact Statement
Statutory authority: Pursuant to Executive Law, section 295.5, it is a power and a duty of the Division to adopt, promulgate, amend and rescind suitable rules and regulations to carry out the provisions of the Executive Law, article 15 (Human Rights Law).
Legislative objectives: The Legislature declared the opportunity to obtain employment and use of places of public accommodation and the ownership, use and occupancy of housing accommodations and commercial space without discrimination because of sex or disability to be a civil right, and has prohibited discrimination on the bases of sex and disability in these and other areas. Executive Law, sections 291, 296, 296-a, 296-b and 296-c.
Needs and benefits: It has long been the practice of the Division of Human Rights to accept and process Human Rights Law complaints alleging discrimination because of gender identity, on the basis of the protected categories of both sex and, where appropriate, disability. Over the years, both New York and federal case law in this area has developed to support protection for transgender persons on the basis of sex. Also, the New York Human Rights Law offers substantially more protection than federal antidiscrimination laws because gender dysphoria is a medical condition that falls within the broad definition of disability under the Human Rights Law, as courts in New York have recognized. This is not the case under federal law. This additional protection affords increased rights in New York, such as the right to reasonable accommodation for those diagnosed with gender dysphoria.
In Richards v. U.S. Tennis Association, 93 Misc.2d 713, 400 N.Y.S.2d 267 (Sup.Ct. N.Y. Co. 1977), it was recognized that sex discrimination claims under the Human Rights Law may be brought by individuals alleging discrimination because of their gender identity. Following Richards, the court in Maffei v. Kolaeton Industry, Inc., 164 Misc.2d 547, 626 N.Y.S.2d 391 (Sup.Ct. N.Y. Co. 1995), found that derogatory comments by an employer directed at a person who has undergone sex reassignment surgery can be sexual harassment, just as comments about secondary sex characteristics of any person can be sexual harassment.
The expansion of protection from discrimination on the basis of gender identity to individuals who had not necessarily completed sex reassignment surgery but identified themselves as a different sex is consonant with the development of legal recognition of sex stereotyping as a form of sex discrimination. Sex stereotyping occurs when behavior is considered inappropriate or unacceptable because of the person’s sex. In Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the Court found that the plaintiff stated a claim for sex discrimination where an employer reacted negatively to a female employee because her personality traits were considered inappropriate in a woman. Courts have interpreted the Human Rights Law to extend the prohibition on discrimination on the basis of sex stereotyping to transgender persons. See Martin v. J.C. Penney Corp., Inc., 28 F.Supp.3d 153 (E.D.N.Y. 2014) (two females who alleged they were singled out and suspected of shoplifting because they were dressed as males stated valid sex discrimination claim under the Human Rights Law); Hispanic Aids Forum v. Bruno, 16 Misc.3d 960, 839 N.Y.S.2d 691 (Sup.Ct. N.Y. Co. 2007) (landlord’s attempts to exclude plaintiff's transgender clients from the building constituted discrimination because of sex); Buffong v. Castle on the Hudson, 2005 N.Y. Slip Op. 52314U, 12 Misc.3d 1193(A), 2005 WL 4658320 (Sup.Ct. Westch. Co. 2005) (unpublished decision) (transgender person states a claim pursuant to the Human Rights Law on the ground that the word "sex" in the statute covers transgender persons, reviewing existing case law).
In addition, under the Human Rights Law, a person meeting the criteria for a medical diagnosis of gender dysphoria is entitled to the disability protections of the Human Rights Law. This includes being entitled to reasonable accommodations that may be requested based on treatments intended to ameliorate gender dysphoria. This may include living as, and being treated as, a person with a gender opposite one’s birth gender. In Wilson v. Phoenix House, 42 Misc.3d 677, 978 N.Y.S.2d 748 (Sup.Ct. Kings Co. 2013), the provider of a drug rehabilitation program was found to have discriminated against the plaintiff, a biologically male transgender woman, where she was required to share facilities with men and attend all-male counselling sessions, and was told she could not wear her wig or high heeled shoes. The court found this was discrimination based upon her disability (at that time referred to as gender identity disorder) and the program failed to make reasonable accommodations for her disability.
In Doe v. City of New York, 42 Misc.3d 502, 976 N.Y.S.2d 360 (Sup.Ct. N.Y. Co. 2013), the plaintiff, who was diagnosed with gender identity disorder and completed reassignment surgery, requested that HIV/AIDS Services Administration, update her records and benefit card to reflect her legal name change and that she was now female, though formerly male. She submitted her court order and documentation from her doctor. HASA’s refusal to make the change because plaintiff had been unable to obtain an amended birth certificate was discriminatory.
The proposed regulations clarify the impact of these legal developments on enforcement of the sex discrimination prohibitions, and clarify the extended coverage of gender dysphoria as a disability under the New York State Human Rights Law, thus providing information as to these important rights to all New Yorkers.
Costs:
a. costs to regulated parties for the implementation of and continuing compliance with the rule: No new costs are anticipated for regulated parties. The implementation of this rule clarifies the Division’s practice and policy with regard to complaints of transgender individuals.
b. costs to the agency, the state and local governments for the implementation and continuation of the rule: It is anticipated that any costs to the State Division of Human Rights due to increased filings because of increased awareness of the protections described, and for continued implementation of the rule, will be minimal and capable of being absorbed using existing Division staff and resources. No new costs are anticipated for state and local governments.
c. the information, including the source(s) of such information and the methodology upon which the cost analysis is based: The State Division of Human Rights has, for decades, received and processed complaints of transgender persons alleging sex and/or disability discrimination. The implementation of this rule clarifies the Division’s practice and policy with regard to complaints of transgender individuals and does not impose any new costs.
Local government mandates: None.
Paperwork: None.
Duplication: This proposed rule does not duplicate existing state requirements. The proposed rule duplicates existing federal requirements pursuant to federal anti-discrimination statues with regard to sex discrimination. The proposed rule does not duplicate federal requirements with regard to disability discrimination.
Alternatives: No significant alternatives were considered.
Federal standards: While this rule creates no new substantive requirements, the disability protections under this rule do exceed those provided under federal law. The Human Rights Law defines disability more broadly than the federal Americans With Disabilities Act.
Compliance schedule: Regulated parties have been required, for decades, not to discriminate against transgender persons under the Human Rights Law. This regulation does not impose any new compliance requirements or create new penalties for non-compliance.
Regulatory Flexibility Analysis
The proposed rule will not impose any adverse economic impact or reporting, recordkeeping or other compliance requirements on small businesses or local governments because the State Division of Human Rights has, for decades, received and processed complaints of transgender persons alleging sex and/or disability discrimination. The implementation of this rule clarifies the Division’s practice and policy with regard to complaints of transgender individuals and does not impose any new requirements.
Rural Area Flexibility Analysis
The proposed rule will not impose any adverse impact on rural areas or reporting, recordkeeping or other compliance requirements on public or private entities in rural areas because the State Division of Human Rights has, for decades, received and processed complaints of transgender persons alleging sex and/or disability discrimination. The implementation of this rule clarifies the Division’s practice and policy with regard to complaints of transgender individuals and does not impose any new requirements.
Job Impact Statement
The proposed rule will not have any adverse impact on jobs and employment opportunities. The proposed rule will have a positive impact on jobs and employment opportunities because it prohibits discrimination in employment against individuals based on their gender identity.
