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Massachusetts Law About Gender Identity or Expression

Massachusetts Laws

Massachusetts Regulations

Massachusetts Executive Orders

Executive Order 526 and Executive Order 527, Extend the state's equal rights protections to gender identity and expression, effective February 17, 2011. The orders cover state workers and employees of private companies that contract with the state. 

Massachusetts City and Town Bylaws

Amherst, Human Rights Bylaw. "...no person, public or private, shall be denied any rights guaranteed pursuant to local, state, and/or federal law on the basis of race or color, gender, physical or mental ability, religion, socio-economic status, ethnic or national origin, affectional or sexual preference, gender identity or expression, genetic information, lifestyle, or age."

Boston, Human Rights, Chapter XII, s.12-9. Includes in its protections, "Gender identity or expression shall mean and include a person's actual or perceived gender, as well as a person's gender identity, gender-related self-image, gender-related appearance, or gender-related expression whether or not that gender identity, gender-related self-image, gender-related appearance, or gender-related expression is different from that traditionally associated with a person's sex at birth."

Cambridge, Cambridge Gay Lesbian Bisexual and Transgender Commission, Title 2, c.2.125. Also, Human Rights, c.2.76 defines gender as, "the actual or perceived appearance, expression or identity of a person with respect to masculinity and femininity."

Northampton, Human Rights Commission, s.22-104. Focuses on discrimination " on the basis of race, color, religious creed, national origin, sex, gender identity or expression, sexual orientation, age, ancestry, or disability, marital status, veteran status, receipt of public or housing assistance, or because they have children."

Federal Laws

Americans With Disabilities Act (ADA), 42 USC 12211 (b)(1) "Under this chapter, the term "disability" shall not include...(1) transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders."

Selected Cases

Doe v. Yunits et al, 15 Mass. Law Rptr. 278 (2002). A student with gender identity disorder is not excluded from the definition of "qualified handicapped individual" under the Article CXIV of the Declaration of Rights of the Massachusetts Constitution. Further, requiring Doe to dress in boy's clothing may be considered "a constructive expulsion [if Doe] could not comply with these conditions without endangering her mental health."

Jette v. Honey Farms Mini Market, 23 MDLR 229 (2001). "Discrimination against transsexuals because of their transsexuality is discrimination based on 'sex' within the meaning of M.G.L. c. 151B," and transsexuality is not "excluded from the definition of 'disability' as a matter of law."

Kosilek v. Spencer, US. Dist. Ct. (Mass.) (2012). 8th Amendment prohibition against cruel and unusual punishment requires the Deprt. of Correction to "take forthwith all of the actions reasonably necessary to provide [an inmate with severe gender identity disorder] sex reassignment surgery as promptly as possible."

Lie v. Sky Publishing Corp., 15 Mass. Law Rptr. 412 (2002).Outlines the difference between transsexual, transgender and other terms. The plaintiff, a transgender female, established a prima facie case of sex discrimination under MGL c.151B, and discrimination on the basis of handicap.

Millet and MCAD v. Lutco, Inc., 23 MDLR 231 (2001). While ""transsexuality" is not a "sexual orientation" as that term is defined by M.G.L. c. 151B § 3(6), " "We instead hold that "sex" discrimination, as prohibited by chapter 151B, includes a prohibition against discrimination against transsexual individuals." Subsequent proceedings:

Rosa v. Park West Bank & Trust, 214 F.3d 213 (2000). In this First Circuit case, a man who was denied a loan application because he was dressed in women's clothing had established a prima facie case of sex discrimination under the Equal Credit Opportunity Act.

Other Web Sources

Division of Insurance Bulletin 2014-03: Guidance Regarding Prohibited Discrimination on the Basis of Gender Identity or Gender Dysphoria Including Medically Necessary Transgender Surgery and Related Health Care Services, June 20, 2014. New!

Mass. to Cover Range of Transgender Medical Care, Boston Globe, June 20, 2014. New policies will expand insurance coverage for transgender medical care in Massachusetts. New!

Massachusetts Transgender Political Coalition. This group is "dedicated to ending discrimination on the basis of gender identity and gender expression. Their website includes transgender publications and information and forms to change your Massachusetts Driver's License/State ID Card, Social Security Card, Passport or Birth Certificate.  They also have Free Legal Clinics for transgender issues.

Nondescrimination on the Basis of Gender Identity: Guidelines for Massachusetts Public Schools, Mass. Dept. of Education. "This guidance is intended to help school and district administrators take steps to create a culture in which transgender and gender nonconforming students feel safe, supported, and fully included, and to meet each school's obligation to provide equal educational opportunities for all students, in compliance with G.L. c. 76, §5 and the state regulations."

A Prescription for Gender: How Medical Professionals Can Help Secure Equality for
Transgender People
, by Jennifer L. Levi, Western New England College School of Law, 2003. "Part I reviews cases involving discrimination against transgender people in employment, credit, public accommodations, and housing. Part II addresses the state of family law as it has been applied to trans gender people. Part III concludes by suggesting ways medical professionals can play an instrumental role in achieving favorable outcomes for trans gender litigants, particularly in the area of family law."

Recent Cases Offer Employment Discrimination Protection to Transgender People, by Christina Bolmarcich (May, 2009). Outlines laws in various jurisdictions. The "protections once offered based on strict notions of biological gender are being replaced by protections offered regardless of gender but solely based on discriminatory acts against individuals in the workplace."

Sexual Orientation and the Law: A research bibliography of legal literature discussing gay, lesbian, transgender and bisexual persons, their rights and their families, American Association of Law Libraries Standing Committee on Lesbian and Gay Issues, 2011.

Transgender Rights, GLAD. The site lists a dozen publications on transgender issues, including Legal Q&A for Kids of Trans Parents and Transgender Students’ Use of Bathrooms and Locker Rooms.

Transgender Legal Issues: New England, GLAD, June, 2014. This 50+ page document covers obtaining protection under existing laws, changing documents and more.

Transsexual Surgery, US Dept. of Health and Human Services Appeals Board, Decision 2576, May 30, 2014. Medicare may no longer exclude sex-reassignment surgery from coverage. New!

Print Sources

"Clothes Don't Make the Man (or Woman), but Gender Identity Might," by Jennifer L. Levi, 15 Colum. J. Gender & L. 90 (2006). Also available online to law library cardholders through Hein Online.

"Defining the Human: Are Transgender People Strangers to the Law?," by Abigail W. Lloyd, 20 Berkeley J. Gender L. & Just. 150 (2005). Also available online to law library cardholders through Hein Online.

"Defying Classification: Intestacy Issues for Transsexual Surviving Spouses," by Melissa Aubin. 82 Or. L. Rev. 1155 (2003). Also available online to law library cardholders through Hein Online.

"Documenting Gender," by Dean Spade. 59 Hastings L.J. 731 (2007-2008). Outlines policies "that govern the recognition of a change in a person's gender by a state or
federal administrative agency." Also available online to law library cardholders through Hein Online.

Gay, Lesbian and Transgender Clients: A Lawyers Guide, by Joan M. Burda, American Bar Association, 2008.

Lesbian, Gay, Bisexual and Transgender Family Law, West, 2010.

"The (Mis)Categorization of Sex in Anglo-American Cases of Transsexual Marriage," by John Parsi. 108 Mich. L. Rev. 1497 (2009-2010). The "lack of national uniformity [in changing birth certificates] makes post-operative transsexuals' recognition of their acquired sex complicated at best and impossible at worst." Also available online to law library cardholders through Hein Online.

"Sexual and Gender Variation in American Public Law: From Malignant to Benign to Productive, " by William N. Eskridge, Jr. 57 UCLA L. Rev. 1333 (2009-2010) Also available online to law library cardholders through Hein Online.

Transgender Family Law: A Guide to Effective Advocacy, Author-House, 2012.

"When Steve Is Fired for Becoming Susan: Why Courts and Legislators Need to Protect Transgender Employees from Discrimination," by Shannon H. Tan, 37 Stetson L. Rev. 579 (2007-2008). Also available online to law library cardholders through Hein Online.