Gender Identity and Expression

Our ALANYC Chapter Diversity & Inclusion Team expressed an interest in including this important topic during our September 20, 2017 Round Table Session when we learned that New York City had passed a law protecting thirty-one (31) gender identities and expressions.  We also learned that a violation of this law by an employer, which can occur simply by not using an employee’s desired pronoun when addressing them, could lead to a substantial financial penalty.  We were also quite concerned that apparently very few (if any) ALANYC members who we discussed the topic with were aware of the details of this law or even of its existence.

We had two highly qualified expert speakers who guided us through this discussion, provided a great deal of info and addressed many questions:

Katherine Greenberg – Assistant Commissioner, Law Enforcement Bureau, NYC Commissions on Human Rights

Anthony Consiglio – Employment Attorney at Cary Kane, LLP

The following is some of the important information that was discussed with and explained by our experts:

1. A distinction between “sexual orientation” and “gender non-conformity” is in practice impossible to maintain, and many courts have noted that the two concepts can’t be logically separated. More importantly, both concepts are inseparable from the concept of “sex,” as is gender identity itself. Title VII of the Civil Rights Act dating from 1964, addresses “sex discrimination”, but in somewhat out of date in its specific terms. The federal courts are now involved in deciding whether Title VII applies to “sexual orientation discrimination.”
2. New York State Human Rights Law (NYCHRL) prohibits discrimination based on gender identity or expression.  Gender is defined to include individual’s sex, gender identity, self-image, appearance, behavior, or expression,  both actual and perceived.  All employers with 4+ employees are covered. “Employee” includes interns, part time workers, unpaid workers, undocumented workers, many independent contractors
3. What do we mean by “gender identity and expression” and what types of behaviors or treatment are prohibited?
   • Gender identity is a person’s deeply held sense of one’s own gender, which may be the same or different as the sex assigned at birth. May be male, female, neither, or both (i.e., non-binary). Everyone has a gender identity, which is not the same as sexual orientation.
   • Gender expression is a person’s representation of their gender as expressed through, e.g., name, pronouns, clothing, hair, behavior, voice, body characteristics. May be conventionally male or female, or may be nonconforming.
   • Prohibited behaviors include a) refusing to hire or the firing an employee because of gender identity/gender expression; b) denying a promotion, a raise, or otherwise treating employee less well in terms/conditions because of gender identity/gender expression; c) harassment, e.g., intentionally or repeatedly failing to use an individual’s preferred name or pronoun; d) demanding medical information or official ID to call an employee by their preferred name or pronoun; e) barring employees from using single-sex facilities consistent with their gender or requiring “proof” of gender to access facility; f) allowing sex stereotyping language in the workplace; g) uniform/grooming standards based on gender; h) providing employee benefits that discriminate based on gender.
4. What are some best practices for employers to avoid gender identity/expression discrimination in the workplace? How can an employer best respond if they are notified of a gender identity/expression claim against them?
   • Educate employees about all types of discrimination, including the prohibited behaviors outlined above.
   • Train employees on cultural competency, including how to work with transgender clients and coworkers.
   • Institute policies prohibiting harassment and discrimination, providing multiple avenues to report violations, and explicitly defining and barring retaliation.
   • Ensure your health insurance plans to not exclude coverage for transition-related care.
   • Implement a policy regarding gender transition in the workplace so that you are prepared if/when an employee seeks to transition on the job. Transgender Law Center has model transgender employment policy on its website.
5. According to documentation published online by the NYC Commission on Human Rights, there are currently thirty-one (31) gender identity and expressions that the NYCHRL applies to.  They are:
   • Bi-Gendered
   • Cross-Dresser
   • Drag King
   • Drag Queen
   • Femme Queen
   • Female-to-Male
   • FTM
   • Gender Bender
   • Genderqueer
   • Male-to-Female
   • MTF
   • Non-Op
   • Hijra
   • Pangender
   • Transexual/Transsexual
   • Trans Person
   • Woman
   • Man
   • Butch
   • Two-Spirit
   • Trans
   • Agender
   • Third Sex
   • Gender Fluid
   • Non-Binary Transgender
   • Androgyne
   • Gender Gifted
   • Gender Blender
   • Femme
   • Person of Transgender Experience
   • Androgynous

As with any important and involved discussion, there were certain questions and concerns that remain, for now, unanswered:

1. Financial repercussions on employers– Our team discovered online, confirmed by several sources, that there is a $250,000 fine that employers are subject to when violating this law, with lenience allowed for a first infraction.  When asked to confirm, Ms. Greenberg’s answer was somewhat vague, stating that several cases that went to court settled for a much smaller sum.
2. What is the necessity of thirty-one gender types and through what research are these categories derived from.  When asked by someone from another table how many gender identities and expressions there really are Ms. Greenberg’s response was unlimited.  Why Unlimited???
3. How does an employer deal with an employee who may want to abuse this law with the intent of legally compromising them in order to seek unjust financial gain?
4. Several participants of our roundtable discussion who were parents expressed their concern with how the topic is becoming a more complex issue at their children’s schools.  The news recently reported that at a California school, a six year old girl addressed one of her 1^st grade classmates, whom she knew in kindergarten as a boy, by the wrong pronoun, not knowing he had changed his gender identity.  The little girl was then strongly reprimanded by school principal for doing so.  At the end of our session, it was not clear as to what degree this will become a more prominent issue in the classroom.

Although valuing and protecting the rights of others to express themselves is an important objective in an evolving society, we must ask ourselves whether such extreme measures such as acknowledging thirty-one (or more) gender identities and expressions is really necessary in order to protect such a relatively small percentage of our population from the possible scrutiny of others.  Is the extent of this law critical to maintaining the right to gender identify and expression, or is there also an ulterior motive here…an attempt to use this topic to disrupt and alter a significant element of our the social structure, developed over thousands of years, and condition all of us to stop saying “he” or “she” and start referring to each other as “they”.

Respectfully submitted by:

John J. Connolly
LDI Color ToolBox
ALANYC Diversity and Inclusion Committee Member