• I concur fully with Professor Levi. As I read the new CT law and legislative history, the options offered to prove one’s gender identity apply only in litigation and cannot be imposed on an employee or applicant by an employer. As I write in my recent article, Gender Identity and Expression in the Workplace – A Pragmatic Guide for Lawyers and Human Resource Professionals, available at http://www.acc.com/gender-identity_expanded, at page 32, footnote 68:

    “The new June 2011 Connecticut law outlawing discrimination on the basis of gender identity or expression — which covers employment, housing, public accommodations, credit, and other areas — contains an interesting provision that was adopted during a floor debate. The added language provides an illustrative list of ways an employee can prove, during employment discrimination litigation, the employee’s gender identity: ‘evidence including, but not limited to, medical history, care or treatment of the gender-related identity, consistent and uniform assertion of the gender-related identity or any other evidence that the gender-related identity is sincerely held, part of a person’s core identity or not being asserted for an improper purpose.’ Connecticut Public Act 11-55, §1 (June 14, 2011), available at http://www.cga.ct.gov/asp/cgabillstatus/cgabillstatus.asp?selBillType=Bill&bill_num=6599&which_year=2011&SUBMIT1.x=9&SUBMIT1.y=9&SUBMIT1=Normal and http://www.cga.ct.gov/2011/ACT/PA/2011PA-00055-R00HB-06599-PA.htm. The extensive colloquy during the debate clearly establishes that the purpose of the added language is to provide the Connecticut Commission on Human Rights and Opportunities (CHRO) and the courts guidance with respect to how an employee can prove the employee’s gender identity or expression in the event the employee files a formal discrimination complaint with the CHRO and, after exhaustion of administrative remedies, in court. It was added to the law in order to eliminate the possibility that a ‘flip-flopper’ — someone who on a whim changes gender identity or expression back and forth day after day or week after week ¬— would be covered by the new law. In contrast, an employee who advises an employer that the employee will henceforth present in the gender matching the employee’s gender identity is protected by the law and can, for example, immediately begin using the bathroom corresponding to the employee’s expressed gender identity. See Proceedings of The Connecticut General Assembly: The House of Representatives (May 19, 2011), available at http://www.cga.ct.gov/2011/trn/H/2011HTR00519-R00-TRN.htm.

    “The added language is not an authorization for employers to request such evidence from an employee who has come out and begun the process of gender affirmation. Nonetheless, the added language is instructive for employers: an employee going through a gender affirmation normally will be able to easily meet the low threshold set by the added language. Similar to the way Congress told employers, when it passed the ADA Amendments Act of 2008 (ADAAA), to get past the question of whether an employee has a disability and to focus instead on reasonable accommodations, the Connecticut legislature has instructed employers to not question an employee’s good faith coming out in the workplace and to accept the employee in accordance with the employee’s expressed gender identity. See Proceedings of The Connecticut General Assembly: The House of Representatives (May 19, 2011), available at http://www.cga.ct.gov/2011/trn/H/2011HTR00519-R00-TRN.htm.”

    Christine

  • Christine Michelle Duffy became a registered member

    2011-09-10 14:18:35View | Delete