Gender Identity Now a Protected Characteristic in New Jersey

July 16, 2007

Legislation making gender identity or expression a protected characteristic under the New Jersey Law Against Discrimination ("LAD") took effect on June 17, 2007.  The law, approved by the state legislature and signed by Governor Corzine last December, makes it illegal for employers and others to discriminate on the basis of gender identity or expression.

The Scope of the Protection

The LAD now protects individuals "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."  The definition refers to transgender individuals, meaning those who have been assigned one biological gender, usually at birth and based on their genitals, but who feel that gender offers them only a false or incomplete description.  Transgender individuals include:

• transsexuals (people who strongly identify with being a member of the opposite biological sex and may seek to live as a member of that sex by undergoing surgery and/or hormone therapy to obtain the necessary physical appearance),
• transvestites (people who adopt the dress and often the behavior typical of the opposite sex but, unlike transsexuals, do not wish to change sexes), and
• those who appear androgynous (people who identify as neither specifically masculine nor specifically feminine). 

Additionally, the New Jersey statute applies to two forms of discrimination: that based on gender identity (one's self-identification as male or female, or both or neither, regardless of one's biological sex), and that based on gender expression (the expression of behavioral characteristics culturally associated with the opposite sex, which may or may not correspond to an individual's gender identity).

Immediate Employer Response

New Jersey employers should review their human resources and personnel policies and practices to ensure gender identity or expression is not taken into account in making employment decisions.  Employers should also consider including this protection, along with other protected characteristics, as appropriate, in their equal employment opportunity, anti-harassment and anti-discrimination statements.  The new protection should be added to any EEO or anti-harassment employee training.

Anticipated Issues

The amended law may pose unique issues and potential conflicts in the workplace for New Jersey employers, particularly in the areas of dress codes and restroom usage policies.  Concerning dress codes, while the law provides that "[n]othing in the provisions of this section shall affect the ability of an employer to adhere to reasonable workplace appearance, grooming and dress standards not precluded by other provisions of State or federal law," there also is the caveat that "an employer shall allow an employee to appear, groom and dress consistent with the employee's gender identity or expression."  This essentially permits cross-dressing in the workplace.  However, an employer still has the right to maintain professional dress and appearance standards. 

On restroom usage policies, the New Jersey statute provides that "individuals shall be admitted [to facilities in places of public accommodation] based on their gender identity or expression."  Thus it appears that in New Jersey, places of public accommodation, including those where employers invite the public onto their premises, must permit individuals to use the restroom based on their gender identity or expression.

Another potential problem area is harassment of employees by co-workers on the basis of gender identity or expression.  New Jersey employers will need to ensure that supervisors and employees understand it is now illegal to harass or demean co-workers through language or actions on the basis of gender identity or expression just as it is illegal to do so on the basis of other protected characteristics such as race, sex and religion.

Jackson Lewis attorneys are available to counsel employers on this significant change to the LAD, review its implications for human resources policies and practices and conduct workplace training to educate employees on this topic. 

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