Sex v. Gender Legal Scorecard (USA)

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Every state in the United States plus the District of Columbia bans discrimination based on sex in employment, housing, and public accommodations, among other areas of public life (e.g., credit). These “Anti-Discrimination Laws” evince a public policy against irrational discrimination as having no place in a free and open society.  However, each of these Anti-Discrimination Laws also preserves an exception to the general policy against discrimination with regard to sex-segregated facilities.  These exceptions operate as an admission by that state that females have an interest in sex-segregated facilities. That is, discrimination based on sex can be “rational.” The discussion of the basis for this exception (i.e., in favor of “rational discrimination”) is beyond the scope of this blog post.

This post specifically addresses the head-on conflict between “sex” as a protected characteristic and “gender identity” or “gender expression” (i.e., transgenderism) as a protected characteristic under Anti-Discrimination Laws in sex-segregated facilities and how men’s rights activists use gender identity laws to ensure access by male-bodied people into female-only space.

Below, we note the states that have enacted a gender identity law that bans discrimination in “public accommodations” (which includes sex-segregated spaces like bathrooms, locker rooms, and women-only shelters) and any case law stemming from the law.  If you are aware of a development not included herein, please leave a comment.

Minnesota: Minn. Stat. § 363A.11.   Minnesota bans discrimination based on “gender identity” through its definition of “sexual orientation,” which includes “having or being perceived as having a self-image or identity not traditionally associated with one’s biological maleness or femaleness.”  Minn. Stat. § 363A.03, Subd. 44.

Legal Challenges that Present the Sex v. Gender Conflict: An employer did not commit sexual orientation discrimination by prohibiting a transgender person, who was born a male, from using women’s restroom where employer’s policy was based solely on biological sex. In another case, the court upheld a decision not to allow a biological female to use the men’s restroom.

Rhode Island: R. I. Gen. Laws § 11-24-2. Rhode Island bans discrimination based on “gender identity or expression,” which includes a person’s actual or perceived gender, as well as a person’s gender identity, gender-related self image, gender-related appearance, or gender-related expression, whether or not that gender identity, gender-related self image, gender-related appearance, or gender-related expression is different from that traditionally associated with the person’s sex at birth. R.I. Gen. Laws § 11-24-2.1(i).

Legal Challenges that Present the Sex v. Gender Conflict: Unknown.

New Mexico: N.M. Stat. Ann. § 28-1-7(F).  “Gender identity” means a person’s self-perception, or perception of that person by another, of the person’s identity as a male or female based upon the person’s appearance, behavior or physical characteristics that are in accord with or opposed to the person’s physical anatomy, chromosomal sex or sex at birth.  N.M. Stat. Ann. § 28-1-2(Q).

Legal Challenges that Present the Sex v. Gender Conflict: Unknown.

California: Unruh Civil Rights Act, Cal. Civ. Code § 51.5.  The Unruh Civil Rights Act defines “sex” with reference to the definition of “gender” in the Penal Code as including a person’s gender identity and gender related appearance and behavior whether or not stereotypically associated with the person’s assigned sex at birth.  Cal. Civ. Code § 51(e)(4), Cal. Gov. Code § 12926(p), Cal. Pen. Code § 422.56(c).  Specifically “sex” includes, but is not limited to, pregnancy, childbirth, or medical conditions related to pregnancy or childbirth. “Sex” also includes, but is not limited to, a person’s gender. “Gender” means sex, and includes a person’s gender identity and gender expression. “Gender expression” means a person’s gender-related appearance and behavior whether or not stereotypically associated with the person’s assigned sex at birth.

Legal Challenges that Present the Sex v. Gender Conflict: Domaine Javier, 25, a transgender woman, is suing California Baptist University in Riverside, California for allegedly expelling him in August 2011 after Javier revealed in an episode of MTV’s “True Life” that he is biologically male.  In another case, an administrative agency held that a nightclub violated the law prohibiting sex discrimination in public accommodations when it excluded a transgender woman.

District of Columbia: D.C. Code § 2-1402.31.  “Gender identity or expression” means a gender-related identity, appearance, expression, or behavior of an individual, regardless of the individual’s assigned sex at birth.  D.C. Code § 2-1401.02 (12A).

Legal Challenges that Present the Sex v. Gender Conflict: The D.C. Trans Coalition has filed the lawsuit on behalf of Lakiesha Washington against New Hope Ministries, Inc. of Woodbridge, Va., which owns and operates the John L. Young Women’s Shelter, claiming that the shelter for homeless women located three blocks from the U.S. Capitol is violating the D.C. Human Rights Act by refusing to admit transgender women unless they provide “documentation” of a legal name change or sex reassignment surgery.  This lawsuit ended in a settlement that allowed male-bodied people access to a women-only shelter.

Illinois: 775 Ill. Comp. Stat. 5/5-102.  Illinois bans discrimination based on “gender identity” through its definition of “sexual orientation,” which “gender-related identity, whether or not traditionally associated with the person’s designated sex at birth.”  775 Ill. Comp. Stat. 5/1-103(O-1).

Legal Challenges that Present the Sex v. Gender Conflict: Levi Pine seeks the right to disrobe in male-only space.

Maine: 5 Me. Rev. Stat. § 4591.  Maine bans discrimination based on “gender identity” through its definition of “sexual orientation,” which includes a person’s actual or perceived gender identity or expression.  5 Me. Rev. Stat. § 4553(9-C).

Legal Challenges that Present the Sex v. Gender Conflict: Nicole Maines, a transgender girl, continues to push a lawsuit to allow transgender students access to opposite sex restrooms. At least one homeless shelter has also eradicated safe space for women.

New Jersey: N.J. Stat. § 10:5-4. New Jersey defines “gender identity or expression” 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. N.J. Rev. Stat. 10:5-5(rr).

Legal Challenges that Present the Sex v. Gender Conflict: Unknown.

Washington: Rev. Code Wash. § 49.60.215. “Sexual orientation” includes gender expression or identity.  As used in this definition, “gender expression or 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.  Rev. Code Wash. § 49.60.040(26).

Legal Challenges that Present the Sex v. Gender Conflict: Colleen Francis challenged Evergreen College for its reluctance to allow a grown man to use the girls’ locker room.

Iowa: Iowa Code § 216.7.  “Gender identity” means a gender-related identity of a person, regardless of the person’s assigned sex at birth.  Iowa Code § 216.2(10).

Legal Challenges that Present the Sex v. Gender Conflict:  Jodie Jones won the right to use the women’s restroom by simply asserting that he is a woman.

Oregon: Or. Rev. Stat. § 659A.403.  Oregon bans discrimination based on “gender identity” through the definition of “sexual orientation,” which includes an individual’s actual or perceived gender identity, regardless of whether the individual’s gender identity, appearance, expression or behavior differs from that traditionally associated with the individual’s sex at birth. Or. Rev. Stat. § 174.100(6).

Legal Challenges that Present the Sex v. Gender Conflict: Unknown.

Hawaii:   Haw. Rev. Stat. § 489-3. Hawaii defines “gender identity or expression” includes a person’s actual or perceived gender, as well as a person’s gender identity, gender-related self-image, gender-related appearance, or gender-related expression, regardless of whether that gender identity, gender-related self-image, gender-related appearance, or gender-related expression is different from that traditionally associated with the person’s sex at birth.Haw. Rev. Stat. § 489-2.

Legal Challenges that Present the Sex v. Gender Conflict: Unknown.

Vermont: 9 Vt. Stat. Ann. § 4502.  “Gender identity” means an individual’s actual or perceived gender identity, or gender-related characteristics intrinsically related to an individual’s gender or gender-identity, regardless of the individual’s assigned sex at birth.  1 Vt. Stat. Ann. § 144.

Legal Challenges that Present the Sex v. Gender Conflict: Unknown.

Colorado: Colo. Rev. Stat. § 24-34-601.  Colorado bans discrimination based on “transgender status” through its definition of “sexual orientation,” which includes a person’s transgender status or another person’s perception thereof.  Colo. Rev. Stat. §  2-4-401(13.5).  Colorado law does not define “transgender status.”

Legal Challenges that Present the Sex v. Gender Conflict: Colorado is at the forefront of decimating women-only space, allowing, in spectacular fashion, a six-year-old boy access to the girls’ room.

Connecticut: Conn. Gen. Stat. § 46a-63.  “Gender identity or expression” means a person’s gender-related identity, appearance or behavior, whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person’s physiology or assigned sex at birth, which gender-related identity can be shown by providing evidence including, but not limited to, medical history, care or treatment of the gender-related identity, consistent and uniform assertion of the gender-related identity or any other evidence that the gender-related identity is sincerely held, part of a person’s core identity or not being asserted for an improper purpose.  Conn. Gen. Stat. § 4a-60a(21).

Legal Challenges that Present the Sex v. Gender Conflict: Unknown.

Nevada: Nev. Rev. Stat. §651.070. Nevada defines “gender identity or expression” as a gender-related identity, appearance, expression or behavior of a person, regardless of the person’s assigned sex at birth. Nev. Rev. Stat. §651.050(4).

Legal Challenges that Present the Sex v. Gender Conflict: Unknown.

Massachusetts: ALM GL ch. 272, § 9. “Gender identity” means a person’s physiology or assigned sex at birth. Gender-related identity may be shown by providing evidence including, but not limited to, medical history, care or treatment of the gender-related identity, consistent and uniform assertion of the gender-related identity or any other evidence that the gender-related identity is sincerely held as part of a person’s core identity; provided, however, that gender-related identity shall not be asserted for any improper purpose. ALM GL ch. 4, § 7(59).

Legal Challenges that Present the Sex v. Gender Conflict: We are aware of a challenge brought against a women-only homeless shelter. The complaint, filed with the Massachusetts Commission Against Discrimination, asserts that the complainant resided at the shelter between June and September of 2012. Upon his initial arrival, he asked for a bed in the women’s dormitory.  When the staff learned that he is a transgender woman, they refused him access, and instead housed him in a segregated room designated for storage of donated clothing.

Delaware: 6 Del. C. § 4501. Gender identity means a gender-related identity, appearance, expression or behavior of a person, regardless of the person’s assigned sex at birth. Gender identity may be demonstrated by consistent and uniform assertion of the gender identity or any other evidence that the gender identity is sincerely held as part of a person’s core identity; provided, however, that gender identity shall not be asserted for any improper purpose. 6 Del. C. § 4502(10).

Legal Challenges that Present the Sex v. Gender Conflict: Unknown.

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