June 26, 2013
Last week, Governor Jack Markell signed a bill into law that protects individuals in Delaware from discrimination on the basis of gender identity or expression. The Gender Identity Nondiscrimination Act of 2013 (the “Act”) adds gender identity to the already-existing list of protected classes in Delaware’s nondiscrimination laws. Under the Act, discrimination against a person on the basis of gender identity in housing, employment, public works contracting, public accommodations, and insurance is now prohibited. The Act also provides enhanced penalties under Delaware’s hate crimes law for targeting a person because of his or her gender identity.
Under the Act, “gender identity” is defined as a gender-related identity, appearance, expression, or behavior of a person, regardless of the person’s assigned sex at birth. The Act protects both transgender individuals as well as individuals who do not conform to traditional gender stereotypes. According to the Act, gender identity may be demonstrated by “consistent and uniform assertion of the gender identity or any other evidence that the gender identity is sincerely held as part of a person’s core identity,” but cannot be asserted “for any improper purpose.”
Pursuant to this new law, an employer must allow employees to appear, groom, and dress consistent with their gender identity. However, the Act does not prevent an employer from requiring employees to adhere to reasonable workplace appearance, grooming, and dress standards not precluded by other provisions of state or federal law. Also, places of public accommodation such as health clubs can provide reasonable accommodations based on gender identity in areas where disrobing is likely, such as locker rooms or other changing facilities. A reasonable accommodation may include a separate or private changing area for the use of persons whose gender-related identity, appearance, or expression is different from their assigned sex at birth.
Delaware’s new law is similar to the laws in 16 other states and the District of Columbia that afford some degree of protection against discrimination on the basis of a person’s gender identity, appearance, or expression.
Employers should train management and review and revise their current policies and practices as needed to comply with this new law.