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Bar News - April 19, 2017

Labor & Employment Law: Legislation Update: Gender Identity as a Protected Status


The past year has seen rapid policy changes on the issue of gender identity. Some states have passed measures to protect transgender citizens, while others have implemented restrictions in bathrooms or changing rooms. The Trump Administration has vacillated, retaining some Obama-era protections while reversing others. The trajectory is in favor of greater protections for transgender residents, but the near future is uncertain.

Employers and their legal counsel face a confusing patchwork of disparate laws, regulations, and administrative actions.

Against this backdrop, New Hampshire recently came close to adopting explicit statutory protections for transgender residents. HB 478 would have amended RSA 354-A to add “gender identity” as a protected status in employment, housing, and public accommodations. The bill had bipartisan support and passed committee with a positive vote of 16-2. Then, in early March, House Speaker Shawn Jasper successfully whipped votes to kill the bill. The House voted 187-179 to table it, likely ending debate for this session.

This means that, for now, New Hampshire remains the only state in New England without statutory protections for transgender residents. However, victims of discrimination may still have legal recourse, especially in the employment context. Proponents are likely to introduce the same or similar legislation next term, and in the meantime, courts and administrative agencies have precedent for providing relief.

Failed Amendment to RSA 354-A

HB 478 would have added “gender identity” to the list of protected statuses under RSA 354-A. It is worth reviewing the failed legislation because it likely will return, and it also is consistent with statutes passed in neighboring states.

HB 478 tackles difficult questions: What is “gender identity,” and what burden of proof should the law impose on a plaintiff to show gender identity? States have reached varying conclusions in recent years, and the law is far from uniform.

HB 478 defines “gender identity” as “a person’s gender-related identity, appearance or behavior, whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person’s physiology or assigned sex at birth.” This parallels the broad definition of “gender identity” adopted in neighboring states. Massachusetts uses an identical definition (Mass. Gen. Laws, Ch. 4, Section 7, 2016), while Vermont defines “gender identity” based on a person’s “actual or perceived gender identity” or “gender-related characteristics intrinsically related to an individual’s gender or gender-identity, regardless of the individual’s assigned sex at birth” (1 VSA Section 144, 2007). Maine is less specific, including the term in its definition of “sexual orientation” as “a person’s actual or perceived heterosexuality, bisexuality, homosexuality or gender identity or expression” (5 MRS Section 4553, 2013).

According to HB 478, as proposed, a person could show gender identity by “evidence including, but not limited to, medical history, care or treatment of the gender-related identity, consistent and uniform assertion of the gender-related identity or any other evidence that the gender-related identity is sincerely held as part of a person’s core identity.”

This approach contrasts with recent “bathroom bills” in other states, which reject the possibility of gender identity differing from one’s gender recorded at birth. North Carolina’s HB 2 (now mostly repealed) required residents to use the bathroom or changing facility corresponding to the “biological sex” indicated on their birth certificates. Texas has proposed similar legislation. Illinois’s proposed House Bill 664 regulates school changing rooms based on a child’s “chromosomes” and “anatomy.” A dozen other states have proposed laws in 2017 regulating behavior based on one’s birth certificate, chromosomes, or genitalia.

Where NH Law Stands Now

Currently, a victim of discrimination based on gender identity has limited recourse under state law. Former governor Maggie Hassan signed an executive order in 2016 prohibiting discrimination in state employment, but otherwise, protections are not explicit.

Rep. Jess Edwards (R-Auburn) supported HB 478 in committee, but then voted to table it. He reportedly told NHPR that he changed his mind in part because the New Hampshire Constitution and Human Rights Commission (HRC) already protect against discrimination.

The HRC hears cases of transgender discrimination, but it stands on a Superior Court case decided nearly three decades ago. In 1988, the Rockingham County Superior Court in Jane Doe v. Electro-Craft Corporation relied on a previous version of the DSM to rule that “transsexualism is a mental handicap” protected under RSA 354-A.

The better argument: gender identity discrimination is a form of sex discrimination prohibited by RSA 354-A. The Equal Employment Opportunity Commission takes a similar approach in its interpretation of Title VII, and this interpretation has prevailed in federal courts. See, e.g., Glenn v. Brumby (11th Circuit, 2011). New Hampshire courts look to Title VII for guidance in interpreting RSA 354-A.

Both of the above theories – sex discrimination and mental disability discrimination – have succeeded in other states. A transgender employee also might argue that her employer mistook her as gay and discriminated on the basis of sexual orientation.

Practical Considerations

As society continues to debate gender identity laws, employers should assume that gender identity is a protected status giving rise to claims, and that state and federal legislators will soon make this explicit in statutes.

One argument in the recent HB 478 debate was that discrimination does not actually occur. Employers, take heed: this is demonstrably false. Studies show that transgender employees, along with customers and clients, experience discrimination on a frequent basis, and this could lead to actionable claims.

In 2015, the National Center for Transgender Equality surveyed 27,715 transgender Americans and found startling rates of discrimination. Among those who had a job in the past year, 30 percent reported that they had been fired, denied a promotion, or suffered other forms of mistreatment related to their gender identity or expression. In places of public accommodation, 14 percent reported that they were denied equal treatment or services, and 24 percent said they were verbally harassed.

The problem exists, and employers need to address it proactively. Counsel should assist them in updating handbooks, implementing training for supervisors and other employees, handling internal complaints or requests for accommodation, and giving additional consideration before terminating someone or denying services.

James A. McClure

James A. McClure is a litigation associate at Devine Millimet, where he works with the firm’s Labor, Employment, and Employee Benefits Team.

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