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NJLAD now prohibits gender-Identity and expression discrimination

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in Discrimination and Harassment,Human Resources

Last December, the New Jersey Legislature amended the New Jersey Law Against Discrimination (NJLAD) to protect people from adverse treatment due to “gender identity or expression.”

The statute defines “gender identity or expression” as “having or being perceived as having a gender related identity or expression whether or not stereotypically associated with a person’s assigned sex at birth.” Gov. Jon Corzine signed the amendment into law, making it effective on June 17.

The amendment codifies a 2001 New Jersey Superior Court, Appellate Divi-sion ruling, Enriquez v. West Jersey Health Systems, which found discrimination based on gender identity violated New Jersey’s sex- and/or disability-discrimination laws. In Enriquez, the plaintiff, a male-to-female transsexual, alleged her employer discriminated against and discharged her due to her sexual orientation, gender and disability.

The plaintiff claimed she felt like a woman trapped in a man’s body from an early age. When she began the external transformation from male to female — removing facial hair, sculpting her eyebrows, piercing her ears and growing breasts — her employer terminated her.

Pretrial motions

The motion judge ruled the plaintiff could not bring a sexual-orientation discrimination claim because she admitted that while she was a man, she was not gay and was never accused of being gay. The judge also dismissed a disability-discrimination claim, citing precedents holding that the NJLAD and similar statutes did not define transsexualism as a mental or physical disability.

On appeal, the appellate division faced two novel issues: First, whether gender dysphoria or transsexualism is a handicap under the NJLAD; and second, whether the NJLAD precludes an employer from discriminating on the basis of someone’s sexual identity or gender.

A recognized disability

The appellate division interpreted the NJLAD expansively to include gender dysphoria as a disability. Gender dysphoria is a rare mental or psychiatric disorder affecting about one in every 50,000 persons. Individuals suffering from gender dysphoria feel persistently uncomfortable about their anatomical sex. Treatment consists of extensive psychological counseling, long-term “transition” planning, contra-hormonal therapy, hair removal, full-time living in the putative gender role (the so-called “real life test”) and, in some cases, sex-reassignment surgery.

The NJLAD defines “disability” as “mental, psychological or developmental disability resulting from anatomical, psychological, physiological or neurological conditions which prevents the normal exercise of any bodily or mental functions or is demonstrable, medically or psychologically, by accepted clinical or laboratory diagnostic techniques.” Because gender dysphoria is a recognized mental disability identifiable by accepted clinical diagnostic techniques, the appellate division concluded it qualifies as a handicap under the NJLAD.

In outlawing transsexual discrimination, the appellate court commented that, “it is incomprehensible” that the legislature would ban discrimination against heterosexual, homosexual and bisexual men and women, “but would condone discrimination against men or women who seek to change their anatomical sex because they suffer from a gender identity disorder.”

Until the Enriquez case, most federal courts declined to recognize transsexuals within a protected class under Title VII.

Workplace impact

Transgender activist, Barbara Casbar, wrote that the NJLAD amendment affected very few people, and did little to change the societal bias and discrimination that most transgender and gender-variant people bear.

However, the new amendment expands protections for gender identity or expression beyond the holding in Enriquez by creating a protected class of individuals who are “perceived as having a gender related identity or expression whether or not stereotypically associated with a person’s assigned sex at birth.” As no legislative history sheds light on this statutory language, litigation may ultimately define the decision’s boundaries.

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