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IDENTITY DISCRIMINATION

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Gender identity is an individual’s sense of being either male or female, man or woman, or something other or in-between. Gender expression describes the external characteristics and behaviors that are socially defined as either masculine or feminine, such as dress, mannerisms, speech patterns and social interactions.
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Content Preview
Guidelines regarding
IDENTITY
DISCRIMINATION
A Form of Gender Discrimination Prohibited by
The New York City Human Rights Law
Title 8 of the Administrative Code of the
City of New York
NEW YORK CITY COMMISSION ON HUMAN RIGHTS
MICHAEL R. BLOOMBERG, Mayor PATRICIA L. GATLING, Commissioner/Chair

Guidelines REGARDING GENDER IDENTITY DISCRIMINATION
CONTENTS
I. Purpose
II. Definitions
A. Gender Identity/Gender Expression
B. Transgender
C. Intersex Individuals
III. Areas of Application
A. Employment
B. Public Accommodations
C. Housing & Lending Institutions
D. Discriminatory Harassment or Violence
E. Retaliation
IV. Avoiding Discriminatory Practices
A. Preventing Harassment and Hostile Environment
B. Dress Codes
C. Access to Restrooms and Other Sex-Segregated Facilities
D. Public Accommodations/Unavoidable Nudity
E. Policy/Training
V. Enforcement and Penalties
Appendix
Local Law 3
ACKNOWLEDGEMENTS
The Commission on Human Rights thanks the following individuals for their
assistance in the creation of these guidelines: Randolph Wills, Matt Foreman,
Michael Silverman, Carrie Davis, Pauline Park, Melissa Sklarz, Dean Spade, and
Moonhawk Stone.
If you have been discriminated against, cal to set up an intake appointment
and speak to an attorney at the Commission: (212) 306–7450.
New York City Commission on Human Rights
40 Rector Street, New York, NY 10006

December 2006
NEW YORK CITY COMMISSION ON HUMAN RIGHTS
1

Guidelines regarding
IDENTITY
DISCRIMINATION
I. Purpose
• To inform individuals of their
rights under the Law; and,
In April 2002, the New York City
• To assist employers,
Human Rights Law, located in
housing providers, businesses,
Title 8 of the Administrative Code
organizations, service providers
of the City of New York, was
(including government) and
amended to make it clear that an
other entities in understanding
individual’s gender identity is an
their responsibilities under
area of protection under the Law.
the Law.
It is the law and policy of the
These guidelines do not constitute
City of New York to eliminate
legal advice and do not cover every
discrimination based upon
aspect of the Law. For specific
an individual’s “actual or
questions regarding the coverage
perceived gender.”
of the Human Rights Law, see
“Gender” is defined in the City’s
the Administrative Code of the City
Human Rights Law to include:
of New York, contact the New
York City Commission on Human
• actual or perceived sex;
Rights, or seek legal counsel.
• gender identity;
• self-image;
II. Definitions
• appearance; and,
A. Gender Identity/Gender
• behavior or expression, whether
Expression
or not that gender identity,
self-image, appearance, behavior Gender identity is an individual’s
or expression is different from
sense of being either male or
that traditionally associated with female, man or woman, or
the legal sex assigned to an
something other or in-between.
individual at birth.
Gender expression describes the
The Human Rights Commission
external characteristics and
developed these guidelines:
behaviors that are socially defined
• To educate the public about
as either masculine or feminine,
the prohibition of gender
such as dress, mannerisms, speech
discrimination, particularly
patterns and social interactions.
as it protects transgender
B. Transgender
and gender-variant people
in New York City;
“Transgender” is an umbrella
term that includes anyone whose
NEW YORK CITY COMMISSION ON HUMAN RIGHTS
2

Guidelines REGARDING GENDER IDENTITY DISCRIMINATION
gender identity and/or gender
different individuals have a gender
expression does not match society’s identity and/or gender expression
expectations of how an individual
that is not completely male or
who was assigned a particular
female. This includes individuals
sex at birth should behave in
who do not conform to expectations
relation to their gender. The term
of a specific gender role and
includes, but is not limited to:
individuals who express both
• pre-operative, post-operative and masculine and feminine qualities.
non-operative transsexuals who
These individuals are sometimes
may or may not use hormones;
referred to as “androgynous.”
• intersex individuals;
C. Intersex Individuals
• persons exhibiting gender
characteristics and identities that Intersex individuals are born with
are perceived to be inconsistent
chromosomes, external genitalia,
with their gender at birth;
and/or an internal reproductive
• persons perceived to be
system that varies from what is
androgynous;
considered “standard” for either
• transvestites;
males or females.
• cross-dressers; and,
III. Areas of Application
• drag queens or kings.
A. Employment
1. Transsexuals
(Administrative Code: Section 8-107(1))
Transsexuals are individuals
It is an unlawful discriminatory
whose gender expression or
practice for an employer, or an
identity is perceived to conflict
employee or agent thereof, to
with the sex assigned to them
discriminate against any employee
at birth, and who may or may not
or applicant for employment based
begin or continue the process
upon actual or perceived gender
of hormone replacement therapy
(including the individual’s actual
and/or gender confirmation
or perceived sex, gender identity,
surgery. Transsexuals are often
self-image, appearance, behavior
described as female-to-male
or expression, whether or not that
(FTM) or male-to-female (MTF).
gender identity, self-image,
2. Gender Variant,
appearance, behavior or expression
Gender Non-conforming
is different from that traditionally
or Gender Different
associated with the legal sex
assigned to an individual at birth)
Gender variant, gender
with regard to recruitment, hiring,
non-conforming, or gender
firing, promotions, wages, job
NEW YORK CITY COMMISSION ON HUMAN RIGHTS
3

Guidelines REGARDING GENDER IDENTITY DISCRIMINATION
assignments, training, benefits,
the sale, rental or lease of a
and other terms and conditions
housing accommodation.
of employment.
It is an unlawful discriminatory
B. Public Accommodations
practice for such persons to
(Administrative Code: Section 8-107(4))
refuse to sell, rent, lease, approve
“Public accommodations” refer
the sale, rental or lease or otherwise
to providers of goods and/or
deny to or withhold a housing
services to the public. Restaurants, accommodation or an interest
hospitals, stores, theaters, and
therein from, or otherwise
service providers (including
discriminate against any person
government) are some examples
on the basis of actual or perceived
of public accommodations.
gender (including the individual’s
It is an unlawful discriminatory
actual or perceived sex, gender
practice for a place or provider
identity, self-image, appearance,
of a public accommodation directly behavior or expression, whether or
or indirectly to refuse, withhold
not that gender identity, self-image,
from, or deny a person any of the
appearance, behavior or expression
accommodations, advantages,
is different from that traditionally
facilities, services or privileges of
associated with the legal sex
an accommodation based upon
assigned to an individual at birth).
the person’s actual or perceived
Real estate brokers, real estate
gender (including the individual’s
salespersons, employees or agents
actual or perceived sex, gender
thereof may not discriminate on
identity, self-image, appearance,
the basis of actual or perceived
behavior or expression, whether
gender (including the individual’s
or not that gender identity,
actual or perceived sex, gender
self-image, appearance, behavior
identity, self-image, appearance,
or expression is different from
behavior or expression, whether or
that traditionally associated with
the legal sex assigned to an
not that gender identity, self-image,
individual at birth).
appearance, behavior or expression
is different from that traditionally
C. Housing & Lending Institutions associated with the legal sex
(Administrative Code: Section 8-107(5))
assigned to an individual at birth)
The housing discrimination
in the rental or sale of property.
provisions apply to the owner,
The prohibited behavior includes
lessor, managing agent or
all aspects of real property
other person having the right to
transactions, such as the refusal to
sell, rent or lease or approve
show, rent, or sell real property
NEW YORK CITY COMMISSION ON HUMAN RIGHTS
4

Guidelines REGARDING GENDER IDENTITY DISCRIMINATION
that is available for sale or lease,
behavior or expression, whether
the addition of different or
or not that gender identity,
additional terms or conditions in a self-image, appearance, behavior
lease or mortgage, and the refusal
or expression is different from
to provide services or make repairs that traditionally associated with
or improvements for any tenant or the legal sex assigned to an
lessee.
individual at birth).
Banks and other lending institutions It is also illegal to knowingly
may not discriminate against an
deface, damage or destroy the real
applicant for credit on the basis of
or personal property of any person
actual or perceived gender
for the purpose of intimidating or
(including the individual’s actual
interfering with the free exercise
or perceived sex, gender identity,
or enjoyment of any right or
self-image, appearance, behavior
privilege secured to the other
or expression, whether or not that
person by the constitution or laws
gender identity, self-image,
of this state or by the constitution
appearance, behavior or expression or laws of the United States or by
is different from that traditionally
local law of the city when such
associated with the legal sex
defacement, damage or destruction
assigned to an individual at birth).
of real or personal property is
D. Civil Action for Discriminatory
motivated in whole or in part by
Harassment or Violence
the victim’s actual or perceived
(Administrative Code: Section 8-602)
gender (including the individual’s
It is illegal to interfere by force or
actual or perceived sex, gender
threat of force, or knowingly
identity, self-image, appearance,
injure, intimidate or interfere with, behavior or expression, whether or
oppress, or threaten any other
not that gender identity, self-image,
person in the free exercise or
appearance, behavior or expression
enjoyment of any right or privilege is different from that traditionally
secured to him or her by the
associated with the legal sex
constitution or laws of this state or assigned to an individual at birth).
by the constitution or laws of the
In addition to coming to the
United States or by local law of the New York City Commission on
city when such injury, intimidation, Human Rights, victims of
interference, oppression or threat
bias-related harassment or violence
is motivated in whole or in part by are encouraged to report the
the victim’s actual or perceived
incident immediately to the police
gender (including the individual’s
and/or their County’s District
actual or perceived sex, gender
Attorney’s Office.
identity, self-image, appearance,
NEW YORK CITY COMMISSION ON HUMAN RIGHTS
5

Guidelines REGARDING GENDER IDENTITY DISCRIMINATION
E. Retaliation
titles, pronouns, and other terms
appropriate to their gender
It is against the law for an
identity. The refusal to address
employer, housing provider,
individuals in a manner appropriate
lending institution, or provider
to their gender identity is a
of a public accommodation
factor that the Commission will
to retaliate against an individual
consider when determining
because the individual opposed an if discrimination exists.
unlawful discriminatory practice
or made a charge, or because the
• In general, individuals in New
individual testified, assisted, or
York may change their names
participated in an investigation,
without having to go through a
proceeding or hearing.
formal legal process, as long as
the new name is used consistently
IV. Avoiding Discriminatory
and without intent to defraud
Practices
others. Prefixes such as “Ms.”
and “Mr.” and suffixes such as
A. Preventing Harassment and
“Jr.” and “Sr.” do not have legal
Hostile Environment
significance.
Discrimination on the basis of
• When an individual is uncertain
actual or perceived gender
about which name, pronoun (he/
(including the individual’s actual
she; him/her) or title (Ms./Miss/
or perceived sex, gender identity,
Mrs./Mr.) to use in addressing or
self-image, appearance, behavior
referring to another individual, it
or expression, whether or not that
is generally appropriate to ask
gender identity, self-image,
the individual.
appearance, behavior or expression Requesting proof of an individual’s
is different from that traditionally
gender, except when legally
associated with the legal sex
required, chal enging an individual’s
assigned to an individual at birth)
gender, or asking inappropriate
is a violation of the Human
Rights Law. Discrimination may
questions about intimate details of
take the form of unwelcome
an individual’s anatomy, are
verbal or physical conduct,
factors that the Commission will
including, but not limited to,
consider when determining if
derogatory comments, jokes,
discrimination exists.
graffiti, drawings or photographs,
B. Ensuring that Dress
touching or gestures.
Codes Allow for Expression
To avoid the appearance of
of Gender Identity
discrimination, individuals should When developing and enforcing
be addressed with names,
dress codes that are gender-specific,
NEW YORK CITY COMMISSION ON HUMAN RIGHTS
6

Guidelines REGARDING GENDER IDENTITY DISCRIMINATION
employers should permit employees covered entities to provide
to comply with the gender-specific accommodations to individuals
provisions in the codes in an
who have concerns about use
appropriate manner that is
of public restrooms because of
consistent with their gender
gender identity or gender expression.
identity and gender expression.
Such accommodations could
C. Providing Access to
include, for example, offering the
Restrooms and Other
use of a private restroom to a
Sex-Segregated Facilities
member of the public. If an
Nothing in the Human Rights Law individual feels uncomfortable
prohibits restrooms from being
using a particular restroom
designated by gender. With respect because of another individual’s
to facilities that are restricted
presence in the restroom, he or
on the basis of sex, the following
she may be encouraged to wait
are some of the factors that
until that individual has left, or
suggest that discriminatory
to use another restroom.
conduct related to gender identity
D. Public Accommodations
has occurred:
Where Nudity is Unavoidable
(e.g., health clubs, dressing or changing
• Not allowing individuals to use a rooms, etc.)
restroom or other sex-segregated Public accommodations should
facility consistent with their
provide access to appropriate
gender identity or gender
facilities for all individuals.
expression; or
• Requiring individuals to provide The Human Rights Commission
identification as a means of
recommends that public
identifying their gender before
accommodation facilities, such
allowing them to use the restroom as locker rooms, which are
or other sex-segregated facility.
designated for use based on sex,
take steps to create private
Policies and practices aimed at
spaces within them (for example,
preventing or addressing lewd
by installing curtains or cubicles).
behavior or conduct that violates
the privacy of others should
Factors that suggest discriminatory
apply to and protect all individuals. conduct has occurred will include
The Commission recommends
not allowing individuals to use a
that, where single occupancy
dressing or changing room
restrooms are available, they be
consistent with their gender
designated as “gender neutral.”
identity or gender expression.
The Commission also encourages
NEW YORK CITY COMMISSION ON HUMAN RIGHTS
7

Guidelines REGARDING GENDER IDENTITY DISCRIMINATION
E. Policy/Training
$100 per day for each day
The Commission recommends
the violation continues.
that employers, housing
• A private cause of action may
providers, providers of public
be brought under the City’s
accommodations, and banks/
Human Rights Law. Upon
lending institutions implement
finding that a violation of the
anti-discrimination policies
Law has occurred, a court
that address gender identity and
may award damages, injunctive
relief, and attorney’s fees.
gender expression issues, as
well as all other areas covered by
• The New York City Corporation
the Human Rights Law, and
Counsel may bring a civil action
when there is reasonable cause to
institute training for employees
believe that a person or group is
and agents on an ongoing basis.
engaging in a pattern or practice
V. Enforcement and Penalties
that denies to any person the full
enjoyment of rights under the
The City Human Rights Law is
City Human Rights Law. In this
enforced in a number of ways:
instance, the court may award
damages, injunctive relief, and
• The Commission on Human
attorney’s fees, and may also
Rights provides opportunities
award civil penalties of not more
for mediation of complaints
than $250,000.
and also investigates and
• In a case involving discriminatory
prosecutes violations of the Law.
harassment or violence, where a
If the Commission, after a
person has been found to have
hearing, finds that violation of
interfered or attempted to
the Law has occurred, it may
interfere by threats, intimidation
award damages and order other
or coercion with rights protected
affirmative relief such as, for
under the Law, and the interfer-
example, hiring, reinstating,
ence or attempted interference
or upgrading an employee
was motivated in whole or in
and requiring admission to an
part by the victim’s actual or
organization. In addition,
perceived gender, the New York
the Commission may order
City Corporation Counsel may
civil penalties up to $250,000.
ask a court to award civil
A person who fails to comply
penalties of not more than
with an order issued by the
$100,000.
Commission may also be liable
Appendix
for a civil penalty of not more
than $50,000 and an additional
Local Law 3
civil penalty of not more than
NEW YORK CITY COMMISSION ON HUMAN RIGHTS
8

LOCAL LAWS
OF
THE CITY OF NEW YORK
FOR THE YEAR 2002
No. 3
Introduced by Council Members Perkins, Lopez, Quinn, Reed, the Speaker (Council Member
Miller), Moskowitz, Rodriguez, Boyland, Avella, Davis, de Blasio, Gennaro, Gerson, Katz, Kop-
pell, Liu, McMahon, Monserrate, Rivera, Sears, Weprin, Brewer, Barron, Serrano and Stewart;
also Council Members Addabbo, Jr., Martinez, Yassky, Clarke, Baez and Recchia, Jr.
A Local Law to amend the administrative code of the city of New York, in relation to gender-
based discrimination.
Be it enacted by the Council as follows:
Section 1. Legislative finding and intent. The City Council finds and declares that it is in the
interest of the City of New York to protect its citizens from discrimination. Discrimination,
prejudice, intolerance and bigotry directly and profoundly threaten the rights and freedom of
New Yorkers. The City Council established the Human Rights Law to protect its inhabitants
from these dangers. Included in the City’s Human Rights Law is a prohibition of discrimination
against individuals based on gender. The scope of this gender-based protection, however, requires
clarification. This local law is intended to make clear that all gender-based discrimination —
including, but not limited to, discrimination based on an individual’s actual or perceived sex,
and discrimination based on an individual’s gender identity, self-image, appearance, behavior,
or expression — constitutes a violation of the City’s Human Rights Law.
Gender-based discrimination affects a broad range of individuals. But the impact of gender-
based discrimination is especially debilitating for those whose gender self-image and presentation
do not fully accord with the legal sex assigned to them at birth. For those individuals, gender-
based discrimination often leads to pariah status including the loss of a job, the loss of an
apartment, and the refusal of service in public accommodations such as restaurants or stores.
The impact of such discrimination can be especially devastating for those who endure other
prejudices due to their race, ethnicity, national origin, or citizenship status, in addition to gen-
der-based discrimination. In adopting this legislation, the City Council declares that the ability
of all New Yorkers to work and to live free from invidious discrimination based on gender is the
guiding principle of public policy and law.
§2. Section 8-102 of chapter one of title eight of the administrative code of the City of New York
is amended by adding a new subdivision 23 to read as follows:
23. The term “gender” shall include actual or perceived sex and shall also include a person’s
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 legal sex assigned to that person at birth.
§3. This local law shall take effect immediately.
THE CITY OF NEW YORK, OFFICE OF THE CITY CLERK, s.s.:
I hereby certify that the foregoing is a true copy of a local law of the City of New York, passed by
the Council on April 24, 2002, and approved by the Mayor on April 30, 2002.

9

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