United States: NYCCHR Issues Info Card Regarding Discrimination Based On Gender Identity And Expression

Seyfarth Synopsis: The New York City Commission on Human Rights has issued a Gender Identity and Expression "Info Card," expanding on its recent enforcement guidance, and reminding covered entities that they must permit employees and members of the public to dress and use the restroom, pronoun, and name consistent with their gender identity or expression.  The Commission states that refusing to use an individual's preferred name or pronoun, or refusing to allow individuals to use single-sex facilities consistent with their gender identity or expression, will violate the New York City Human Rights Law.

Recently, the New York City Commission on Human Rights issued a Gender Identity and Expression " Info Card."  The New York City Human Rights Law prohibits discrimination based on gender, including gender identity, expression, and transgender status, in employment, public accommodations, and housing.1  In December 2015, the Commission released enforcement guidance regarding discrimination on the basis of gender identity or gender expression.  With its Info Card, enforcement guidance, and public trainings, the Commission appears to be taking steps to remind employers in New York City of their legal requirements surrounding gender identity and gender expression in the workplace.

The Info Card defines "gender identity" and "gender expression," and specifies that individuals, regardless of their gender identity or expression, have the right to "use the bathroom or locker room most consistent with their gender identity and/or expression," "be addressed with their preferred pronouns and name" "without being required to show 'proof' of gender," and "follow dress codes and grooming standards consistent with their gender identity/expression." 

In both the enforcement guidance and Info Card, "gender identity" is defined as "one's internal deeply-held sense of one's gender which may be the same or different from one's sex assigned at birth . . . Gender identity is distinct from sexual orientation."  Further, the guidance emphasizes that everyone has a gender identity and may profess a different gender expression.  "Gender expression" is defined as "external representations of gender as expressed through, for example, one's name, pronouns, clothing, haircut, behavior, voice, or body characteristics.  Society identifies these as masculine and feminine, although what is considered masculine and feminine changes over time and varies by culture.  Many transgender people align their gender expression with their gender identity, rather than the sex they were assigned at birth."

The Commission intends to interpret the New York City Human Rights Law as offering broader protection based on gender identity, gender expression, and transgender status than may be available under New York State or federal law.2 In its enforcement guidance, the Commission provided definitions and examples of discrimination against transgender individuals, including:

  • Intentional failure or refusal to use an individual's preferred name or pronoun.  The Commission in its enforcement guidance states that "refusal to use a transgender employee's preferred name, pronoun, or title may constitute unlawful gender-based harassment."  It states that conditioning use of an individual's preferred name or pronoun on obtaining a court-ordered name change or providing identification in that name or requiring an individual to undergo medical procedures in order to use their preferred name, pronoun, or title will violate the New York City Human Rights Law.
  • Refusing to allow individuals to use single-sex facilities and participate in single-sex programs consistent with their gender identity or expression.  The New York City Human Rights Law requires that individuals be permitted to use single-sex facilities (such as bathrooms or locker rooms) and participate in single-sex programs, consistent with their gender identity or expression, regardless of their sex assigned at birth, anatomy, medical history, appearance, or sex indicated on their identification. Employers may not condition use of such facilities on providing proof of gender, or require a transgender or gender non-conforming person to use a "single-occupancy" restroom.  These facilities must be available to people of all genders.

    • However, the Commission makes clear in its enforcement guidance that the "law does not require entities to make existing bathrooms all-gender or construct additional restrooms." Objections from customers or other employees to sharing a facility with a transgender or gender non-conforming person are not a lawful reason to deny access to that transgender or gender non-conforming individual.
  • Sex stereotyping. For example, overlooking a female employee for a promotion because her behavior does not conform to the employer's notion of how a female should behave at work.
  • Imposing different uniforms or grooming standards based on sex or gender. Federal law permits different grooming or dress code standards based on sex or gender so long as they do not impose an undue burden, e.g., requiring that male servers wear ties. The Commission has made clear in its enforcement guidance that any grooming standard or dress code that differentiates based on gender is discriminatory, even if perceived by some as harmless, e.g., prohibiting a man from wearing makeup or jewelry in the workplace, requiring male servers to wear ties, or requiring female bartenders to wear makeup.  Employers may enforce a dress code, or require specific grooming or appearance standards; however, they may not impose restrictions or requirements specific to gender or sex.
  • Employee benefits. Providing discriminatory employee benefits and refusing to provide coverage for transition-related or gender-affirming care. However, the Commission clarified that employers that have selected a non-discriminatory plan will not be liable for the denial of coverage of a particular medical procedure by an insurance company, even when that denial may constitute discrimination based on gender.
  • Requests for accommodation. The Commission's position is that considering gender when evaluating requests for accommodations, for example by requesting medical documentation to verify leave time from transgender employees but not from all employees, violates the New York City Human Rights Law.

In addition, covered entities "should" post a sign in all single-sex facilities that states, "Under New York City Law, all individuals have the right to use the single-sex facility consistent with their gender identity or expression."  However, posting the encouraged language is not required by law.  The Commission has also encouraged covered entities to create policies to ensure that all individuals are allowed to access the single-sex facility consistent with their gender identity or expression and train all employees, particularly managers and employees who have contact with members of the public, on their obligations under the New York City Human Rights Law to provide non-discriminatory access to single-sex facilities.

The Commission may impose civil penalties up to $125,000 for violations and $250,000 for willful, wanton, or malicious conduct, in addition to damages available to private individuals under the New York City Human Rights Law (including back and front pay, compensatory and punitive damages).  Employers should carefully consider their policies and procedures to ensure compliance with the New York City Human Rights Law's prohibition of discrimination based on gender identity, gender expression, and transgender status.


1 The guidance also suggests that some transgender individuals may have independent protections under the City law's disability discrimination provision and the right to a reasonable accommodation because some transgender people have a diagnosis of "gender dysphoria," which the Commission considers a disability under the City law.

2 We previously reported on New York State's regulations prohibiting discrimination based on gender identity, transgender status and gender dysphoria here; and those regulations went into effect on January 20, 2016.  

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.

Meredith-Anne Berger
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