State Commission Outlines Implementation, Enforcement of Transgender Protections Bill

BOSTON, MA — The Massachusetts Commission Against Discrimination on Thursday released its "Guidance Regarding Gender Identity" alongside guidelines from the State Attorney General's office designed to outline the implementation and enforcement of the transgender protections law passed this summer by the state Legislature.

MCAD said its guidance is designed to help businesses, employers, landlords, and the general public better understand how the commission will be interpreting and enforcing the anti-discrimination law.

"This legislation affirms the Commission’s long-standing recognition of gender identity rights previously enforced through sex discrimination claims," the commission wrote.

The Massachusetts bill prohibits discrimination against transgender people in public places, and protects the right to choose a restroom or other public facility that matches a person's sexual identity, regardless of anatomical sex. The final version requires additional guidance for law enforcement agencies.

Read more: Why Mass. Wasn't Fazed by Federal Directive on Public School Bathrooms

One of the first things business owners should understand is the definition of public accommodations — “any place, whether licensed or unlicensed, which is open to and accepts or solicits the patronage of the general public.”

This includes retail stores, restaurants, malls, public agencies, public parks, beaches and public roads, and more. According to the commission, this also includes other businesses that provide services, such as loan companies, cab services, insurance companies, companies that provide long term disability benefits and businesses that actively provide testing services.

It also provides examples of discrimination in a place of public accommodation, such as:

• A restaurant refuses to seat a group of transgender patrons on the grounds that “this is a quiet
• restaurant,” and “you will draw too much attention from our other patrons.”
• A hotel refuses to host a conference of transgender individuals.
• A bakery refuses to bake a wedding cake for a customer because of their gender identity.
• A stationary store refuses to print wedding invitations for a customer because of their gender
• identity.

One of the tenets of the law that preoccupied opponents was the access to public restrooms. The commission offers this example, by way of explaining how the law works in practice:

Any place of public accommodation that lawfully separates access to a place or portion thereof based on a person’s sex, shall grant admission to that place, and the full enjoyment of that place or portion thereof, consistent with the person’s gender identity. This means that a movie theater that has restrooms designated as “Men’s Restroom” and “Women’s Restroom” must allow its patrons to use the restroom which is consistent with their gender identity. A health club with locker rooms designated as male and female must grant all persons full enjoyment of the locker room consistent with their gender identity. A public swimming pool with changing rooms designated male and female must allow the public to use the changingroom consistent with their gender identity.

The law does not require that businesses provide a gender-neutral bathroom, changing room or other special accommodations, simply that they do not exclude someone from using the facilities based on a person's gender identity.

Another of opponents' chief concerns was clarity on enforcing the state law, should someone falsely claim a different gender identity for "improper purpose." That wording was added to the bill before it passed the Senate, although some legislators believed it did not go far enough.

"There will be people out there who seek to abuse this law -- there are pedophiles, there are rapists, there are bad people in his world," argued Rep. Shawn Dooley, a Norfolk Republican, said during debate in the Senate. "It is not fair to the transgender community that these people will try to abuse this, but that's the reality."

Supporters of the bill labeled such statements "fear mongering" that incorrectly connects such crimes to the transgender community.

Read More: Speeches, Protests As Legislature Passes Transgender Access Bill

Guidance from the attorney general's office provides a Q&A format to answer common questions on that topic and others, such as, "What should a place of public accommodation do if a patron complains about the presence of a transgender person in a sex-segregated facility?"

The AG's office also makes clear that misuse of sex-segregated bathrooms, locker rooms and the like is "exceedingly rare."

It offers the follow guidance:

Employees of a place of public accommodation should not assume an individual’s gender identity solely by appearance. The fact that a woman, whether transgender or not, is perceived as having a “masculine” appearance is not a legitimate reason to exclude her from, or question her presence in, a sex-segregated facility intended for women. Similarly, the fact that a man may appear “feminine” is not a credible basis to exclude him from, or question his presence in, a sex-segregated facility intended for men.

In short, the AG's guidance says, you generally shouldn't find it necessary to ask about someone's gender identity. If there is a legitimate concern about whether someone is using the appropriate facility, the AG's guidance recommends "a private and discrete conversation with that person" to resolve the situation. You could, for example, ask quietly and out of earshot from other patrons, "Are you using the appropriate facility?" the AG's office suggests

There are some situations, such as a health club that documents its membership by gender, where that proof could be requested. The AG's office has guidance on such cases. Then, there are situations where illegal activity is suspected.

The Commission's guidelines list limited examples in which the law would not apply, should someone assert their gender-related identity "for any improper purpose,” such as an unlawful purpose. This could include fraudulent representation to obtain an otherwise unavailable employment-related benefit or a fraudulent effort to evade a legal obligation or an effort to commit a crime, according to the commission.

There is much more to the commission's recommendations, which can be found in full here. Businesses, landlords and individuals seeking to understand the new law and answer commons questions should also read the Attorney General's guidelines here.

Both were released right under the deadline.

The legislation passed this summer required the Massachusetts Commission Against Discrimination and attorney general’s office to report their recommendations, regulations or guidance by Sept. 1.

Full implementation of the law will take effect Oct. 1.

>> Photo, via Maura Healey Twitter, shows the AG and other allies celebrating passage of the transgender protections bill earlier this summer.