Celebrating Enactment of the Transgender Rights Bill

We’re thrilled that last Friday Governor Charlie Baker signed the Transgender Rights Bill (S2407) into law.  Massachusetts joins 17 other states and the District of Columbia, along with more than 200 cities and counties, explicitly prohibiting discrimination based on gender identity.  Here is a brief breakdown of the various provisions of the bill:

  • Section 1 prohibits public accommodation discrimination for gender identity.
  • Section 2 requires proprietors of public accommodations segregated by sex to provide the accommodation consistent with individuals’ gender identity.
  • Section 3 adds gender identity to the list of actionable public accommodation transgressions, making discrimination punishable by a fine of up to $2,500 and/or imprisonment up to 1 year and potentially liable for additional damages for the victim.
  • Section 4 calls on the Massachusetts Commission Against Discrimination (MCAD) and the Attorney General’s Office to make rules and regulations by September 1, 2016, that effectuate the purposes of the act, including defining when and how gender identity may be evidenced and guidance for legal action against any person who asserts gender identity for an improper purpose.

The new law will be phased in, with Sections 1 and 4 taking effect immediately and Sections 2 and 3 taking effect on October 1, 2016.

This compromise version of the bill emerged from a legislative conference committee on July 6.  The committee was chaired by the Judiciary Committee Co-Chairs, Senator William Brownsberger and Representative John Fernandes, and included Senators Sonia Chang-Diaz and Bruce Tarr and Representatives Sarah Peake and Sheila Harrington.  They were tasked with amalgamating the House (H4343) and Senate (S735) versions of the bill, which had different effective dates (Senate: immediately, House: January 1, 2017).  Furthermore, the House version included language similar to the current Section 4, requiring the MCAD and Attorney General to consider rules for enforcement and misuse, that was not in the Senate version.  The Senate passed its version by a vote of 33-4 on May 12.  The House passed its version, 116-36, on June 1.

The law was passed despite some opposition centered on the use of bathrooms, which had previously had an impact in 2011, when public accommodations protections were removed from a broad transgender-rights bill before it passed that year.  The BBA supported that law (read our testimony here), which was enacted without the public-accommodations piece, taking effect on July 1, 2012.

Even without public accommodation protections, that bill took important steps forward, giving transgender people clear legal recourse if they face discrimination at work, in public housing, education, or when applying for credit.  At the time, Massachusetts became the 16th state to add gender identity to its non-discrimination laws in these areas.  It also added gender identity to the Massachusetts hate crime statutes.

We weighed in shortly afterwards, holding a number of programs on the impacts of the new law and publishing an article in the Boston Bar Journal highlighting ways lawyers could try to combat public accommodation discrimination for transgender victims, even without explicit legal protection.  We are pleased that, finally, lawyers representing transgender discrimination victims will no longer have to face the challenges and uncertainty highlighted in that article.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association