Attorney General Issues Gender Identity Guidance for Public Accommodations

Earlier today, Attorney General Maura Healey issued guidance for businesses to comply with the Massachusetts’ new transgender right law. Beginning on October 1, 2016, transgender people will be allowed to use bathrooms, locker rooms, changing rooms, and similar facilities that correspond to their own gender identity.  The law also requires all public accommodations, including restaurants and hotels, to not discriminate transgender people.

Under the guidance, if an issue arises (for example if someone complains) the business should first determine if there is any reasonable basis to believe the transgender person is not using the facility most consistent with their gender identity. A business should always presume that a person is engaged in proper conduct and not presume a person’s gender identity by only how they physically look.  While the guidance does state that a business should generally not need to ask about a person’s gender identity, if there is a legitimate concern due to the person’s behavior, the business should try and resolve a situation through a private conversation.  For example, a business could ask “Are you using the appropriate facility?”  If the person confirms they are, there should usually be no need to continue asking questions.

The guidance is clear, however, that a person cannot assert gender identity for an improper purpose, such as loitering to observe, harassing, or threatening others, photographing or videotaping without permission, or committing a crime. If this occurs, businesses should handle it as they would with any person that was acting inappropriately.  So, for example, if a person fraudulently asserts gender identity to gain access to areas they otherwise would not be allowed, the business can remove the person, suspend their membership, or if necessary detain and report them to the police.

In no way does the transgender law change any criminal law. But the guidance emphasizes that a referral to police must be based on a person’s unlawful conduct and not to harass or embarrass anyone based on their gender identity.

A business should rarely ask for documentation. An exception exists if a transgender person is, or is applying to be, a member of a group that regularly asks for documentation for gender of all members, like a sports club.  A business should never use a request for documentation to harass, threaten, or intimidate.

If the transgender person is acting properly, as expected in nearly all cases, a business can offer another individual who may be uncomfortable additional privacy measures such as a privacy screen, curtained area, or a private unisex room, if available. A business, however, cannot encourage anyone to take advantage of an accommodation based on gender identity if they do not want one.

Finally, in order to balance privacy concerns with the rights of transgender people, businesses could institute neutral policies that apply to all regardless of gender identity. A business could require that clothing be worn in certain areas of a facility regardless of sex or that only single occupancy unisex facilities will exist.