(1) Gender identity means having or being perceived as having a gender identity, self-image, appearance, behavior or expression whether or not that gender identity, self-image, appearance, behavior or expression is different from that traditionally associated with the sex assigned to that person at birth.

(2) A transgender person is an individual who has a gender identity different from the sex assigned to that individual at birth.

(3) Gender dysphoria is a recognized medical condition related to an individual having a gender identity different from the sex assigned at birth.

(1) The term “sex” when used in the Human Rights Law includes gender identity and the status of being transgender.

(2) The prohibitions contained in the Human Rights Law against discrimination on the basis of sex, in all areas of jurisdiction where sex is a protected category, also prohibit discrimination on the basis of gender identity or the status of being transgender.

(3) Harassment on the basis of a person’s gender identity or the status of being transgender is sexual harassment.

(1) The term “disability” as defined in Human Rights Law § 292.21, means (a) a physical, mental or medical impairment resulting from anatomical, physiological, genetic or neurological conditions which prevents the exercise of a normal bodily function or is demonstrable by medically accepted clinical or laboratory diagnostic techniques or (b) a record of such an impairment or (c) a condition regarded by others as such an impairment, provided, however, that in all provisions of this article dealing with employment, the term shall be limited to disabilities which, upon the provision of reasonable accommodations, do not prevent the complainant from performing in a reasonable manner the activities involved in the job or occupation sought or held.

(2) The term “disability” when used in the Human Rights Law includes gender dysphoria or other condition meeting the definition of disability in the Human Rights Law set out above.

(3) The prohibitions contained in the Human Rights Law against discrimination on the basis of disability, in all areas of jurisdiction where disability is a protected category, also prohibit discrimination on the basis of gender dysphoria or other condition meeting the definition of disability in the Human Rights Law set out above.

(4) Refusal to provide reasonable accommodation for persons with gender dysphoria or other condition meeting the definition of disability in the Human Rights Law set out above, where requested and necessary, and in accordance with the Divisions regulations on reasonable accommodation found at 9 NYCRR § 466.11, is disability discrimination.

(5) Harassment on the basis of a person’s gender dysphoria or other condition meeting the definition of disability in the Human Rights Law set out above is harassment on the basis of disability.

Nonsubstantial changes were made to the text of the adopted rule. Gender neutral language replaced the pronouns “him” and “her.” In addition, it was clarified that any gender related condition meeting the definition of disability in the Human Rights Law necessarily would be covered under the disability provisions of the Human Rights Law. A revised RIS is not required because the nonsubstantial changes merely state the requirements under the disability provisions of the Human Rights Law.

Nonsubstantial changes were made to the text of the adopted rule. Gender neutral language replaced the pronouns “him” and “her.” In addition, it was clarified that any gender related condition meeting the definition of disability in the Human Rights Law necessarily would be covered under the disability provisions of the Human Rights Law. A revised RFA is not required because the changes have no impact on the previously published RFA. The adoption of this rule, and these nonsubstantial changes, clarify the Division’s practice and policy with regard to complaints of transgender individuals and do not impose any new requirements.

Nonsubstantial changes were made to the text of the adopted rule. Gender neutral language replaced the pronouns “him” and “her.” In addition, it was clarified that any gender related condition meeting the definition of disability in the Human Rights Law necessarily would be covered under the disability provisions of the Human Rights Law. A revised RAFA is not required because the changes have no impact on the previously published RAFA. The adoption of this rule, and these nonsubstantial changes, clarify the Division’s practice and policy with regard to complaints of transgender individuals and do not impose any new requirements.

Nonsubstantial changes were made to the text of the adopted rule. Gender neutral language replaced the pronouns “him” and “her.” In addition, it was clarified that any gender related condition meeting the definition of disability in the Human Rights Law necessarily would be covered under the disability provisions of the Human Rights Law. A revised JIS is not required because the changes have no impact on the previously published JIS. The adoption of this rule, and these nonsubstantial changes, will not have any adverse impact on jobs and employment opportunities.

As a rule that requires a RFA, RAFA or JIS, this rule will be initially reviewed in the calendar year 2019, which is no later than the 3rd year after the year in which this rule is being adopted.

A Notice of Rule Making was published in the State Register on November 4, 2015. The Division of Human Rights (DHR or Division) received comments associated with the rule making during the public comment period. Many comments were supportive of the proposal, some were supportive but suggested various changes, and many were opposed. The major issues and concerns raised in the comments are summarized below. DHR’s response is provided for each issue or concern.

Comment: The regulation should avoid the use of gendered pronouns.

Response: The final regulation as adopted has removed gendered pronouns.

Comment: The regulation should explicitly include other diagnoses in addition to gender dysphoria, including transsexualism, gender identity disorder, intersex conditions or any other medical diagnosis stemming from having a gender identity different than that typically associated with one’s sex assigned at birth.

Response: The final regulation as adopted has been amended to clarify that any individual who has a medical diagnosis or condition that meets the current statutory definition of disability set out in the HRL is protected from discrimination on that basis by the various disability provisions of the HRL, including employment, housing and places of public accommodation.

Comment: The definition of gender identity should be amended to ensure that individuals who do not identify as transgender, such as gender non-conforming individuals, continue to benefit from the protections under the Human Rights Law.

Response: It is unnecessary to include a specific reference to gender non-conforming individuals. Issues involving gender non-conforming individuals is addressed by the existing law on sex stereotyping, which is a well-established aspect of sex discrimination law. See the Division’s Regulatory Impact Statement for further detail on sex stereotyping.

Comment: The regulation should provide more specific guidance on what types of actions would be considered sex or disability discrimination as they pertain to gender identity, gender expression, or gender dysphoria.

Response: Whether conduct constitutes discrimination or harassment is a fact-intensive inquiry that depends on the circumstances of a case and the applicable legal standards. Pursuant to the statutory language of the HRL, in the area of employment, individuals are entitled to equal treatment with regard to hiring, firing, compensation, or in terms, conditions or privileges of employment. Exec. L. § 296.1. In the area of housing, individuals are entitled to equal access to buy, rent, lease, or otherwise access housing, and to equal terms, conditions or privileges of the sale, rental or lease of housing. Exec. L. § 296.2-a and § 296.5. In the area of public accommodations, individuals may not be denied an accommodation, or the advantages, facilities or privileges thereof, or be subject to statements or other behavior indicating that any protected characteristic of an individual is unwelcome, objectionable or not acceptable, desired or solicited. Exec. L. § 296.2. In addition, the HRL provides that reasonable accommodation for persons with disabilities is specifically required in all of these areas. Exec. L. §§ 296.2(c)-(e), 296.2-a(d); 296.3, 296.18.

Comment: The regulation should provide specific guidance on what types of accommodations are needed by persons with gender dysphoria.

Response: As noted above, whether a particular accommodation is reasonable is a fact-intensive inquiry that depends on the circumstances in a case, including the medical needs of the individual as documented by the person’s medical professional(s), and applicable legal standards. In addition, guidance on determining reasonable accommodation in the employment context is provided by 9 NYCRR 466.11.

Comment: The regulation should make explicit reference to “sex stereotyping.”

Response: It is unnecessary to include a specific reference to sex stereotyping, which is a well-established aspect of sex discrimination law. See the Division’s Regulatory Impact Statement for further detail on sex stereotyping.

Comment: The regulation should explicitly state that “actual or perceived” and/or “past or present” gender dysphoria is included.

Response: The definition of gender identity includes reference to “perceived” gender identity. With regard to gender dysphoria, or other condition meeting the statutory definition of disability set out in the HRL, the definition of “disability” under the HRL includes “a condition regarded by others as” a disability. Thus, all perceived disabilities, including perceived gender dysphoria, entitle the individual to the protection of the disability provisions. Also, the definition of disability under the HRL includes having “a record of” a disability, thus including those with a history of gender dysphoria (or other disability) regardless of whether the individual currently has a disability.

Comment: The regulation should explicitly include “gender expression” in addition to “gender identity.”

Response: The regulation’s definition of gender identity includes “expression.” Variations in gender expression are an issue that is addressed by the existing law on sex stereotyping.

Comment: Various commenters suggested changes to the definition of gender identity (at (b)(1)), and to the explanations of the meaning of “sex” (at (c)(1)) and “disability” (at (d)(2)).

Response: Some suggested changes were stylistic rather than substantive. Some were substantive and advocated broader definitions and more inclusive language. The regulation has been written to state the protections afforded by current discrimination law. Some of the suggested changes may be encompassed in current law, and some of these have been specifically addressed elsewhere in this document. Others may go beyond current law, and should be addressed only on a case-by-case basis under current law, and/or should be determined by the legislature.

Comment: Some commenters suggested the addition of specific language relative to the purpose of the regulation.

Response: The purpose of the regulation, as explained fully in the accompanying Regulatory Impact Statement, is to clarify, consistent with interpretation by New York Courts and the Division’s practice and policy, that the Human Rights Law’s prohibition against sex discrimination includes discrimination based on gender identity and the status of being transgender, and the prohibition against disability discrimination includes discrimination based on gender dysphoria.

Comment: This regulation is ambiguous and unclear; imposes burdensome new costs and mandates upon employers; misinterprets existing law; and exceeds the Division's authority.

Response: The rule clarifies the Division’s practice and policy with regard to complaints of transgender individuals. As set out in the Division’s Regulatory Impact Statement, the Division’s practice and policy are entirely consonant with the case law that has developed in this area with regard to the statutory prohibitions against sex and disability discrimination set out in the HRL. As these requirements already exist, there are no new costs or mandates. Pursuant to Executive Law § 295.5, it is a power and a duty of the Division to adopt, promulgate, amend and rescind suitable rules and regulations to carry out the provisions of the HRL.

Comment: The proposed regulation would force New York employers to change their workplaces to accommodate cross-dressing employees and would make businesses liable for supposed transgressions upon a civil right to “gender identity or expression.”

Response: As noted above, the implementation of this rule clarifies the Division’s practice and policy with regard to complaints of transgender individuals on the bases of sex and/or disability provisions of the HRL and imposes no new liabilities on employers or businesses.

Comment: The Division of Human Rights lacks the authority to revise the definitions of “sex” and “disability” set forth in the HRL.

Response: As noted above, this rule clarifies the Division’s practice and policy with regard to complaints of transgender individuals, in accordance with the interpretation by New York courts of the sex and disability provisions of the HRL. There are no revisions to the definitions of “sex” and “disability.”

Comment: The proposed rule will compromise the privacy and safety of females, undermine the rights of females to have space free from males and permit intact biological males to have access to women’s restrooms and locker rooms.

Response: As noted above, the HRL prohibits sex and disability discrimination in employment, housing and places of public accommodation, and this rule clarifies how persons falling within those bases are protected by the Law. Only persons who meet the standards of the HRL are protected. General conjecture or speculation that the provisions might be misused cannot trump this legitimate need for protection from unlawful discrimination. No examples were given of such misuse in any jurisdiction in the United States where gender identity protection has been adopted.

Comment: The proposed rule would adopt a definition of “gender identity” that is entirely subjective. The proposed definition of “gender identity” does not require any objective proof. Gender identity should be defined as “a person’s identification with the sex opposite her or his physiology or assigned sex at birth, which can be shown by providing evidence including, but not limited to, medical history, care or treatment of a transsexual medical condition, gender dysphoria, or related condition, as deemed medically necessary by the American Medical Association or American Psychiatric Association.”

Response: The HRL defines disability broadly. It includes, but is not limited to, impairments or conditions that are “demonstrable by medically accepted clinical or laboratory diagnostic techniques.” The definition also includes any condition that is “regarded by others as such an impairment” or “a record of such an impairment.” Requiring objective proof, as part of the definition of disability, would place an additional burden on persons with gender dysphoria in establishing the status of having a disability that is not required under the HRL for other kinds of disabilities. The existence of the disability claimed in any particular case (or its perception or record) may be part of evidence required to prove a discrimination claim when a case is filed under the HRL, but requiring a different standard to meet the definition of disability would alter the legislatively imposed definition of disability, and would be beyond the Division’s regulatory authority.

Comment: The proposed rule is inconsistent with the holding in State Div. of Human Rights ex rel. Johnson v Oneida County Sheriff’s Department, which recognized a right to privacy on the basis of sex. Also, the HRL provides an exception that rooming houses may be limited to only one sex, and that the Division may grant exemptions for single sex public accommodations based on public policy considerations.

Response: The resolution of issues involving sex-based privacy, in the narrow circumstances in which it may be available, would be considered as part of the legal analysis of a sex discrimination claim and will be determined on a case-by-case basis. All existing law on this subject will be relevant to such resolutions, which will also involve the recognition that gender-identity discrimination is sex and/or disability discrimination.

Comment: Gender identity should not be included in the definition of “sex,” as “gender identity” is wholly different from sex and, instead, is more analogous to sex stereotypes.

Response: Consistent with the case law cited in the accompanying Regulatory Impact Statement, the Division has interpreted the term “sex” as encompassing “gender identity.”

Comment: Protections for the disabled under the HRL are aimed at seeking modifications of policies and was created specifically to address the legitimate needs of persons with disabilities. The disability basis should not be misused by those seeking legal protections for non-disability situations.

Response: Not all persons claiming gender identity discrimination allege that they are disabled within the meaning of the HRL. However, those who do, and who meet the HRL definition, are protected by the Law’s disability provision.

Comment: Including gender identity under the category of “disability” is a serious threat to the religious liberty of religious organizations.

Response: The HRL contains exemptions for religious institutions at Executive Law § 296(11) and § 292(9). Moreover, enforcement of the HRL’s prohibition against employment discrimination is circumscribed by the “ministerial exception” that the Supreme Court articulated in Hosanna-Tabor Evangelical-Lutheran Church and School v. EEOC (U.S. 2012).