United States: Understanding New York Regulations Regarding Prohibited Discrimination On The Basis Of Gender Identity, Transgender Status, Or Gender Dysphoria

Last Updated: January 26 2016
Article by Stephen A. Fuchs

New York State and New York City both recently enacted regulations and enforcement guidance designed to prohibit discrimination on the basis of gender identity, transgender status, gender expression and gender dysphoria.1 Both have now taken effect.


On October 22, 2015, the New York State Division of Human Rights promulgated new proposed regulations under the New York State Human Rights Law ("NYSHRL"), prohibiting discrimination or harassment on the basis of gender identity, transgender status, or gender dysphoria.2 These new regulations took effect on January 20, 2016. The state regulations provide that:

  • Discrimination on the basis of gender identity is sex discrimination, and the protections in the NYSHRL against gender discrimination also prohibit discrimination on the basis of gender identity or transgender status.
  • Harassment on the basis of a person's gender identity or transgender status constitutes sexual harassment.
  • Discrimination on the basis of gender dysphoria is disability discrimination, and the prohibitions in the NYSHRL against disability discrimination prohibit gender dysphoria.
  • Refusal to provide reasonable accommodations for persons with gender dysphoria, where requested and necessary,3 is disability discrimination.
  • Harassment on the basis of a person's gender dysphoria is harassment on the basis of disability.4


On December 21, 2015, the New York City Commission on Human Rights ("the City Commission") issued lengthy and detailed Legal Enforcement Guidance ("the Guidance") addressing the scope of prohibitions against discrimination on the basis of gender identity and gender expression.5 The Guidance details several prohibited activities that are considered unlawful discrimination on the basis of gender identity and gender.

The New York City Human Rights Law ("NYCHRL") was amended in 2002 to change the definition of "gender" for the purposes of the NYCHRL to "include actual or perceived sex and shall also include a person's 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 legal sex assigned to that person at birth."6

More than 13 years after the amendment, riding a wave of progressive legislation from the City Council and a growing list of states and municipalities providing specific protections from discrimination on the basis of gender identity,7 the City Commission issued the Guidance, which for the first time identified specific conduct that constitutes unlawful discrimination on the basis of gender identity or gender expression.

A. Conduct Constituting Unlawful Discrimination on the Basis of Gender Identity or Gender Expression

The Guidance clarifies that the NYCHRL prohibits discrimination in the terms and conditions of employment based upon gender identity or gender expression. The protections, like most prohibitions against discrimination on the basis of a protected category, apply to employment, housing and public accommodations.

The Guidance identifies the following eight distinct categories of conduct that constitutes unlawful discrimination on the basis of gender identity or gender expression:

1. Failing to Use and Individual's Preferred Name or Pronoun

The Guidance takes the position that covered employers8 and entities are legally required to use an individual's preferred name, pronoun and title (such as Mr., Ms. or Mrs.) regardless of their gender at birth, their anatomy, gender, medical history, appearance, or the gender listed on their identification. It violates the NYCHRL to intentionally or repeatedly refuse to use an individual's preferred name, pronoun or title, or to require that they provide a court-ordered name change or certification in order to use their preferred name. An employer cannot refuse to call a transgender woman by her preferred name, e.g., "Alice," because her identification states her name is "David." An employer may not require an individual to provide information about their medical history or proof of having undergone medical procedures in order to use their preferred name, pronoun or title.

2. Refusing to Allow Individuals to Use Single-Sex Facilities and Programs Consistent With Their Gender Identity

The Guidance provides that employers and businesses must permit individuals to use single-sex facilities, such as restrooms or locker rooms, and participate in single-sex programs consistent with their gender identity. The Guidance clarifies that the law does not require employers or places of public accommodation to make existing restrooms unisex or construct additional restrooms. However, the Guidance also clarifies that objections by employees, customers, and program participants about sharing a facility with a transgender or gender non-conforming individual are not a lawful reason to deny that individual access to a single-sex facility.

Violations of the NYCHRL include prohibiting an individual from using a facility or program because they are transgender, gender non-conforming or do not conform to sex stereotypes, requiring a transgender or gender non-conforming person to provide proof of their gender or identification showing a particular sex in order to access same sex facilities or programs, barring such an individual from participating in a program or using a facility because they may make someone uncomfortable, or forcing such individual to use a single occupancy restroom. So, an employer or business open to the public cannot lawfully ban a transgender employee or patron from a single-sex bathroom because other employees or patrons are uncomfortable, no matter how vociferously the employees or patrons protest.

3. Sex Stereotyping

The Guidance explains that discriminating against an individual because they do not conform to gender stereotypes is a form of gender discrimination. Such acts constitute treating an individual differently because they do not conform to widely held stereotypes of how people of a particular gender should look, act or dress – that is, they are insufficiently masculine or feminine. Violations of NYCHRL based on sex-stereotyping include using anti-gay or derogatory epithets when speaking to or about an individual based on their nonconformity with gender norms, or overlooking a female employee for promotion because her behavior does not conform to how the employer expects a female to behave at work.

4. Imposing Differential Uniform or Grooming Standards Based on Gender

The Guidance states that employers and covered entities may not require dress codes, uniforms, or grooming or appearance standards that differ based upon sex or gender. So, employers and businesses cannot require that only men wear ties, that male and female waiters wear different uniforms, or that only female employees may wear skirts or make-up. This standard differs from prior federal court decisions which have held that different dress and grooming standards based on sex or gender are lawful if they do not impose an undue burden.9 Under the NYCHRL, in contrast, "the fact that the grooming standard or dress code differentiates based on gender is sufficient for it to be considered discriminatory, even if perceived by some as harmless."10 Covered employers and businesses are entitled to enforce a dress code or require specific grooming or appearance standards, as long as those standards do not differentiate on the basis of gender.

5. Providing Employee Benefits that Discriminate Based on Gender

The NYCHRL prohibits offering benefits that discriminate on the basis of gender. Employee benefit plans that are covered by and in compliance with the Employee Retirement Income Security Act and applicable federal anti-discrimination laws comply with the NYCHRL.11 However, the Guidance specifically states that to be non-discriminatory, health benefit plans must cover transgender-related medical procedures and transition-related healthcare (also known as transition-related care or gender-affirming care). Employers are not, however, responsible for denial of coverage for a medical procedure by an insurance carrier if the plan itself does not discriminate. Violations of the NYCHRL relating to the provision of employee benefits include offering health benefits to opposite sex spouses of employees but not same-sex spouses, offering health services that provide certain procedures to others but which are not covered for transgender employees (for example, covering prostate cancer screenings for men but not for transgender women), categorically excluding from coverage health services related to gender transition, or any other benefits that discriminate by gender (for example offering child care benefits to female but not male employees).

6. Considering Gender When Evaluating Requests for Accommodations

It is unlawful under the NYCHRL to consider gender when evaluating requests for accommodation for disabilities, changes to the terms and conditions of employment, participation in a program, or use of a public accommodation. Such requested accommodations may include medical or personal leave or changes in work schedule. Violations of the NYCHRL relating to requests for accommodation include an employer refusing to honor its policy of unpaid medical leave when the request is made by a transgender employee, an employer who permits an accommodation for a "cisgender"12 female employee to have medically necessary reconstructive breast surgery but refuses the same accommodation for a transgender employee undergoing the same medically necessary surgery, requesting medical documentation to verify leave time from transgender employees but not cisgender employees, or determining the retention and accrual of benefits such as seniority and pension rights based on gender.

7. Discriminatory Harassment

Discriminatory harassment or violence motivated by a person's actual or perceived gender identity or expression violates the NYCHRL.

8. Retaliation

The NYCHRL prohibits an employer from retaliating against an individual for opposing discrimination or requesting a reasonable accommodation. These prohibitions apply with equal force when the discrimination complained of is gender identity discrimination, or the accommodation request is based upon the individual's gender identity. Any action taken against an individual because of such a request that is "reasonably likely to deter them from engaging in such activities" is unlawful retaliation.13 Unlawful retaliation includes firing or demoting an individual who files a complaint, assigning the individual to work less desirable shifts contrary to standard practice, failing to grant routinely provided accommodations, and refusing to advance an individual in a program because of their complaints.

B. Penalties for Discrimination Based on Transgender Status or Gender Identity

Employees claiming discrimination on the basis of their gender identity, gender expression or transgender status may file a complaint of discrimination with the City Commission or the State Division of Human Rights within one year of the discriminatory conduct or file a lawsuit within three years.14 A prevailing plaintiff can recover back pay, front pay, compensatory damages and, under New York City law, reasonable attorneys' fees and punitive damages.15 In addition, the Commission can impose civil penalties of up to $125,000 for violations and up to $250,000 for violations it finds to be "willful, wanton and malicious."16 In assessing a civil penalty, the Commission will look to several factors, including the severity of the violation, whether or not there were previous or subsequent violations, the employer's size and its knowledge of the NYCHRL.

C. Recommendations for Employers

Discrimination on the basis of gender identity should be treated just as seriously as any other type of unlawful discrimination. Employers should read both the New York State Regulations and the Commission Guidance, and review their existing policies and procedures for compliance. Employers should consider revisions to their policies, benefits programs and handbooks to ensure they do not violate the NYSHRL and NYCHRL. Disability accommodation policies should be reviewed to ensure they cover medically necessary gender reassignment or transition procedures and do not exclude gender dysphoria as a disability.

The Guidance endorses a number of actions by employers to avoid each category of unlawful conduct described above including, among other things, education programs to inform supervisors and employees of the requirements of the NYCHRL. Employers should consider providing compliance training to supervisors, managers, human resources and recruiting personnel, and in-house counsel to ensure they understand their obligations to ensure lawful treatment of transgender employees. Further, employers must make sure that reporting procedures are available to employees so they can address questions that arise and any complaints get escalated.

Employers should consult experienced employment counsel to assist them in ensuring their policies, programs and benefits do not violate the law, and to provide them with best practices for compliance going forward.


1. "Gender dysphoria" is defined as a medical condition related to an individual having a gender identity different from the sex assigned to him or her at birth, and recognized as a disability under the New York State Human Rights Law. 9 N.Y.C.R.R. § 466.13(b)(3),(d).

2. 9 N.Y.C.R.R. § 433.13.

3. Regulations governing reasonable accommodations for disabilities under New York Law are set forth in 9 N.Y.C.R.R. § 466.11.

4. 9 N.Y.C.R.R. 466.13 (c)(2), (3), (d) (3) – (5).

5. See http://www.nyc.gov/html/cchr/html/law/gender-identity-legalguidance.shtml

6. N.Y.C. Admin. Code § 8-102(23).

7. Currently 19 states and over 200 municipalities prohibit discrimination on the basis of transgender status and/or gender identity. See http://transgenderlawcenter.org/equalitymap; http://www.lgbtmap.org/equality-maps/non_discrimination_ordinances/policies (last visited on January 20, 2016).

8. Both the NYSHRL and the NYCHRL cover employers with four or more persons in their employ. N.Y.C. Admin Code § 8-102.5. However, the NYSHRL was amended, effective January 19, 2016 so that sexual harassment claims may be brought regardless of the number of employees. N. Y. Exec. L. § 292.5.

9. See, e.g., Jesperson v. Harrah's Operating Co., Inc., 392 F.3d 1076 (9th Cir. 2004), aff'd on reh'g,, 444 F.3d 1104 (9th Cir. 2006) (gender discrimination claims dismissed because plaintiff failed to demonstrate that requiring female bartenders to wear makeup placed a greater burden on women).

10. Guidance at p. 7.

11. N.Y.C. Admin Code § 8-107(e)(i).

12. "Cisgender" is a term used to denote to someone who is not transgendered; that is, someone whose gender identity corresponds to their biological sex.

13. Guidance at pp. 9-10.

14. N.Y. Exec. L. § 297;Priore v. New York Yankees, 761 N.Y.S.2d 608, 613 (App. Div. 1st Dep't 2003) (New NYSHRL limitations period) N.Y.C. Admin Code § 8-109(e); N.Y.C. Admin Code § 8-502(d) (NYCHRL limitations period).

15. N.Y.C. Admin Code §8-502(a),(f).

16. Guidance at p. 10.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Stephen A. Fuchs
Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions