NYC enacts new “Gender Identity or Expression” laws

New York is giving lawyers a whole new set of lawsuits with Legal Enforcement Guidance on the Discrimination on the Basis of Gender Identity or Expression:. Business will be the loser.

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WASHINGTON, Dec. 27, 2015 – Life just got a whole lot more complicated. Or here is another reason to stay out of New York!

Draconian political correctness has a new cost in NYC, and that could be as much as a quarter of a million dollars.

With our new acceptance of transsexual persons, a la Caitlyn Jenner, comes a new set of pronouns — like “zhe” or “hir.” There are also a lot of new laws that require employers to be able to correctly identify and accommodate a wide variety of sexual identifications.

According to a newly updated anti-discrimination law in New York City, you could be fined an eye-watering $250,000.

According to NYC COMMISSION ON HUMAN RIGHTSl:S Legal Enforcement Guidance on the Discrimination on the Basis of Gender Identity or Expression: Local Law No. 3 (2002); N.Y.C. Admin. Code § 8-102(23) New Yorkers, especially employers, need to be be able to define and correctly address the following sexual identities:

Cisgender: an adjective denoting or relating to a person whose self-identity conforms with the gender that corresponds to their biological sex, i.e, someone who is not transgender.

Gender Identity: one’s internal deeply-held sense of one’s gender, which may be the same as or different from one’s sex assigned at birth. One’s gender identity may be male, female, neither or both, e.g., non-binary. Everyone has a gender identity. Gender identity is distinct from sexual orientation.

Gender Expression: the representation of gender as expressed through, for example, one’s name, choice of pronouns, clothing, haircut, behavior, voice or body characteristics. Gender expression may not be distinctively male or female and may not conform to traditional gender-based stereotypes assigned to specific gender identities.

Gender: an individual’s actual or perceived sex, 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 sex assigned at birth. Gender Non-Conforming: an adjective sometimes used to describe someone whose gender expression differs from traditional gender-based stereotypes. Not all gender non-conforming people are transgender. Conversely, not all transgender people are gender non-conforming.

Intersex: a term used to refer to a person whose reproductive or sexual anatomy and/or chromosomal pattern does not fit typical definitions of male or female. There are many different medical diagnoses or conditions that an intersex person may have.

Sex: a combination of bodily characteristics including chromosomes, hormones, internal and external reproductive organs, secondary sex characteristics and gender identity. Most people are assigned male or female at birth based on the appearance of their external genitalia.

Transgender: an adjective used to describe someone whose gender identity or expression is not typically associated with the sex assigned at birth. It can be used to describe people with a broad range of identity or expression. People who identify their gender as androgynous, gender queer, non-binary, gender non-conforming, MTF (male to female).

For the “willful and malicious” violation of the new legislation, business owners face up to $250,000 in fines, while standard violations of the law will result in a $125,000 fine.

One must ask who is the arbitrator of “willful and malicious” and how much of a chance small business owners will have of successfully defending themselves from malicious lawsuits. For small business owners, these sums are crippling.

And it will be nothing short of confusing for employers, despite their best intent because it won’t be as simple as referring to transmen as “he” or transwomen as “she.” The legislation makes it clear that if an individual desires, property owners will have to make use of “zhe,” “hir” and any other preferred pronoun, known or unknown.

From the updated legislation:

The NYCHRL requires employers and covered entities to use an individual’s preferred name, pronoun and title (e.g., Ms./Mrs.) regardless of the individual’s sex assigned at birth, anatomy, gender, medical history, appearance, or the sex indicated on the individual’s identification. Most individuals and many transgender people use female or male pronouns and titles.

Some transgender and gender non-conforming people prefer to use pronouns other than he/him/his or she/her/hers, such as they/them/theirs or ze/hir.

The new legislation covers more than pronouns.  Fineable violations of the law will include

  • Maintaining grooming and appearance standards that apply differently to individuals who identify as men or women or which have gender-based distinctions. For example, requiring different uniforms for men and women, or requiring that female bartenders wear makeup.
  • Requiring employees of one gender to wear a uniform specific to that gender.
  • Permitting only individuals who identify as women to wear jewelry or requiring only individuals who identify as male to have short hair. Requiring all servers, for example, to always have long hair tied back in a ponytail or away from their face is not a violation unless it is applied unequally based on gender.
  • Permitting female but not male residents at a drug treatment facility to wear wigs and high heels.
  • Requiring all men to wear ties in order to dine at a restaurant.


Examples of Violations:

  • Intentional or repeated refusal to use an individual’s preferred name, pronoun or title. For example, repeatedly calling a transgender woman “him” or “Mr.” after she has made clear which pronouns and title she uses.
  • Refusal to use an individual’s preferred name, pronoun, or title because it does not conform to gender stereotypes. For example, calling a woman “Mr.” because her appearance is aligned with traditional gender-based stereotypes of masculinity.
  • Conditioning an individual’s use of a preferred name on obtaining a court-ordered name change or providing identification in that name. For example, a covered entity may not refuse to call a transgender woman her preferred name, Jane, because her identification says that her first name is John.
  • Requiring an individual to provide information about their medical history or proof of having undergone particular medical procedures in order to use a preferred name, pronoun, or title.

While some of this could be filed under common sense, there is enough in here that will create new levels of confusion for an already confused populace.  The fact that New York is leaping so fully into financially enforced legislation means that the only ones winning this identity race will be the lawyers.


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