Published in NH Business Review (5/12/2017)
In February, the NH Legislature considered a bill that would have prohibited discrimination based on gender identity. The bipartisan sponsorship of the bill, including two Democratic senators and three Republican senators, was not enough to gain the necessary support.
In March, the House voted in favor of tabling the bill, leaving its fate in limbo for the foreseeable future. Had the bill been passed, New Hampshire would have become the 20th state to enact anti-discrimination legislation that protects the transgender community.
The proposed bill sought to add the category of “gender identity” to the state’s already existing anti-discrimination law. It defined “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.”
New Hampshire’s current anti-discrimination statute prohibits discrimination in housing, employment and public accommodations on the basis of age, sex, race, religion, marital or familial status, physical or mental disability, national origin and sexual orientation.
Despite Republican lawmakers’ concerns that the legislation would permit anyone to access a women’s bathroom, the proposed legislation was not a so-called “bathroom bill” aimed at allowing transgender individuals to use the facilities that correspond to the gender with which they identify.
The bill only applied to discrimination in the areas within the jurisdiction of the State Commission for Human Rights, which are housing, employment and public accommodations.
The bill followed other recent actions by New Hampshire officials to advance the rights of transgender individuals, including an executive order signed by former Gov. Maggie Hassan banning discrimination based on gender identity in state government and former Attorney General Joe Foster’s signature to an amicus brief filed in federal court in support of the Obama administration’s order requiring public schools to allow students bathroom and locker room access based on their gender identity.
Similar legislation granting the transgender community protection against discrimination was passed by the NH House in 2009, but was ultimately rejected by the Senate.
Less than a month after the bill was tabled, the U.S. Seventh Circuit Court of Appeals made history by being the first federal appeals court to rule that Title VII’s prohibition on discrimination based on “sex” includes discrimination on the basis of sexual orientation.
In Hively v. Ivy Tech Community College, the plaintiff, who is a lesbian and was an adjunct professor at a community college, claimed that the college discriminated against her based upon her sexual orientation when it denied her full-time teaching positions and promotions and ultimately terminated her.
The college moved to dismiss the lawsuit on the grounds that Title VII only prohibits discrimination based upon an individual’s race, color, religion, sex or national origin and that “sex” does not include sexual orientation. Unlike New Hampshire’s anti-discrimination statute, Title VII does not expressly prohibit discrimination on the basis of sexual orientation.
The Seventh Circuit disagreed with the college reasoning that it would have offered the plaintiff a fulltime teaching position had she been a man in a relationship with a woman instead of a woman in a relationship with a man. Thus, the court found that the plaintiff was discriminated against because of her “sex.” This ruling was a departure from longstanding precedent refusing to extend the definition of “sex” under Title VII to include “sexual orientation.”
While the opinion did not rule on whether Title VII’s prohibition against discrimination on the basis of “sex” also includes “gender identity,” the decision paves the way for such a ruling. Specifically, the court found there was in fact no line between a “sex” discrimination claim based upon “gender noncomformity” and one based on sexual orientation. The same could be said for a discrimination claim based upon gender identity.
While the Seventh Circuit’s opinion is not binding in New Hampshire, it represents a shift in the interpretation of “sex” discrimination under Title VII, which will surely be noted by the First Circuit. The issue will also likely eventually make its way to the Supreme Court.
The bottom line is, while New Hampshire may not be ready to pass legislation aimed at protecting the transgender community from discrimination, the Hively decision, and the cases that will surely follow, foreshadow that such protections will be available to the transgender community in the not-so-distant future one way or another.
Alexandra L. Geiger, an associate in the Litigation Department at McLane Middleton, can be contacted at 603-628-1483 or firstname.lastname@example.org.