Insights

This summer, Massachusetts will join 15 other states and the District of Columbia in prohibiting discrimination on the basis of gender identity or expression.[1] In November of last year the Massachusetts legislature finalized the Gender Identity Act of 2011 (“GIA”).[2] As defined in GIA an individual’s “gender identity” is that “person’s gender-related identity, appearance or behavior, whether or not that gender-identity, appearance or behavior is different from that traditionally associated with the person’s physiology or assigned sex at birth.”[3]

The inclusion of gender identity in the Commonwealth’s anti-discrimination statutes will have several impacts on creditors. From an employment perspective, it will now become an explicitly unlawful practice to refuse to hire or to terminate an individual from his/her employment (or to otherwise discriminate against an individual in compensation or other employment privileges or determinations) solely on the basis of gender identity.[4] Creditors should make their human resources representatives aware of this change and ensure that hiring and other employment-related policies and procedures are revised to reflect the addition of gender identity as a prohibited basis.

In addition to employment considerations, Massachusetts’ anti-discrimination law makes it unlawful to negatively consider a variety of prohibited bases when extending or setting the terms of credit. The list of such prohibited bases – which always was somewhat more expansive than its federal counterparts – has now grown to include gender identity.[5] From a fair lending perspective, creditors would be wise to not only update lending policies and procedures, but also conduct training and implement monitoring to ensure staff understands that gender identity is included among the prohibited bases. Although not technically required by the anti-discrimination statute, some creditors provide a disclosure to applicants of their additional rights under the statute. If you do so, you should ensure that the list of prohibited bases included in such a disclosure is up-to-date.[6]

Finally, the Massachusetts anti-discrimination statute requires institutional creditors (and a number of other parties) to publicly post a notice approved by the Massachusetts Commission Against Discrimination (“MCAD”) on their premises.[7] MCAD will be issuing a Frequently Asked Questions (“FAQ”) document in the coming weeks to further explain some of the new requirements. It remains to be seen if this FAQ document will include proposed revisions to this notice, although it appears likely that some modifications to the notice to include gender identity as a new prohibited basis under the statute are required.

Thomas P. Quinn is a partner in the Massachusetts office of Hudson Cook, LLP. Tom can be reached at 774-365-4758 or by email at tquinn@hudco.com.

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[1] Cited from the Housing and Urban Development Ending Housing Discrimination Against Lesbian, Gay, Bisexual and Transgender Individuals website (link: http://portal.hud.gov/hudportal/HUD?src=/program_offices/fair_housing_equal_opp/LGBT_Housing_Discrimination) on June 1, 2012. According to the HUD web site the other states with such statutes are: California, Colorado, Connecticut, Hawai’i, Illinois, Iowa, Maine, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington.

[2] Chapter 199 of the Acts of 2011.

[3] Section 1 of Chapter 199 of the Acts of 2011, adding a 59th division of 4 M.G.L.A. § 7.

[4] 151B M.G.L.A. § 4(1), as amended by § 7 of Chapter 199 of the Acts of 2011. Discriminating on the basis of gender identity was already likely a violation of federal employment discrimination laws. Shortly before the effective date of this statutory revision, the Equal Employment Opportunity Commission (“EEOC”) held that employment discrimination against a transgender individual is discrimination based on the sex of that individual and thus a violation of Title VII of the Civil Rights Act of 1964. See: Macy v. Holder, EEOC Appeal No. 0120120821, Agency No. ATF-2011-00751.

[5] 151B M.G.L.A. §§ 4(3B) and (14), each as amended by § 7 of Chapter 199 of the Acts of 2011. In addition to gender identity, the Massachusetts anti-discrimination statute also includes sexual orientation, genetic information and ancestry as prohibited basis in addition to those historically found in the federal Equal Credit Opportunity Act and Fair Housing Act. However, it is worth noting that in its final rule to its housing program guidelines, HUD noted that, while it was not establishing new protected classes under the Fair Housing Act for sexual orientation and gender identity, the existing prohibition on sex discrimination under the Fair Housing Act could be the basis for a complaint by a transgendered individual (for example: discrimination because of that individual’s nonconformity with a gender stereotype). See: 77 Fed. Reg. 5662, 5666 (February 3, 2012).

[6] Note that the types of prohibited bases vary depending on whether the credit in question is or is not secured by a mortgage on residential property. See: 151B M.G.L.A. §§ 4(3B) and (14).

[7] 151B M.G.L.A. § 7.