Employment discrimination on the basis of gender identity and gender expression violates both New York State and New York City laws. City and state laws addressing discrimination in education also prohibit this type of discrimination. As New York City employment discrimination attorneys, we have observed many similarities between discrimination in school programs and discrimination in the workplace. While the new administration in Washington DC is taking a much different approach to issues of gender identity and gender expression than its predecessor, it remains a controversial issue, especially with regard to school sports. Discrimination in school sports can keep students from having access to sports at all, which can have wide-ranging effects. New York City and New York State have taken an inclusive approach, unlike many jurisdictions around the country.
New York State’s employment antidiscrimination law expressly bars discrimination based on “gender identity or expression.” N.Y. Exec. L. § 296(1)(a). Its definition of this term includes a person’s actual “gender-related characteristic[s],” as well as characteristics perceived by others and attributed to a person, and includes both transgender and nonbinary statuses. Id. at § 292(35). New York City law prohibits gender discrimination in employment, which includes gender identity and gender expression “regardless of the sex assigned to that person at birth.” N.Y.C. Admin. Code § 8-102.
State law generally prohibits discrimination on the basis of sex in education programs, including allowing people to participate on “state public and high school athletic teams.” N.Y. Educ. L. § 3201-a. The statute does not specifically mention gender identity or gender expression, but it directs the state’s commissioner of education to establish further regulations on the matter. Athletics present a somewhat different issue than many other concerns regarding discrimination since they tend to be separated based on sex or gender.
Many states have taken the position that participation in sports should be based on the gender assigned to someone at birth, regardless of their actual gender identity. Others require extensive evidence, which may raise serious privacy concerns, to establish a student’s gender identity. Still, others have placed barriers that prevent transgender athletes from participating in sports altogether. New York is among the states that have adopted policies that do not tie participation in sports to one’s gender assigned at birth.
In 2015, the New York State Public High School Athletic Association adopted guidelines for participation in sports by transgender students. These guidelines, which are incorporated into the organization’s Bylaws and Eligibility Standards, state that the superintendent of schools shall “confirm the gender identity asserted…through documentation from the parent, guardian, guidance counselor, or from a doctor, psychologist or other medical professional.” All information and materials provided to the school during this process must remain confidential. A student can appeal an adverse decision to the commissioner of education.
New York City also supports the rights of transgender student-athletes. The city’s guidelines state that schools must allow students to participate in sports “in accordance with the student’s gender identity asserted at school,” although it qualifies this with the word “generally.”
The employment attorneys at Phillips & Associates represent New York City workers and job applicants in claims for gender identity and gender expression discrimination and other violations of federal, state, and municipal law. To schedule a free and confidential consultation with a member of our skilled and experienced team, please contact us today online or at (212) 248-7431.