New Gender Identity Discrimination Laws

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Washington now has several new laws that further prohibit discrimination based on gender identity and gender expression.  These laws, codified as chapter 162-32 WAC, were approved by the Washington Human Rights Commission and became effective on December 26, 2015.  These new laws specifically address such discrimination in the context of employer leave policies, reasonable accommodations, employee benefits, harassment, dress and grooming standards, and gender-segregated facilities.

The most controversial of these new laws deals with gender-segregated facilities.  Pursuant to WAC 162-32-060, most public and private entities now cannot ask or require someone to use restrooms, locker rooms, dressing rooms, and other facilities when it is inconsistent with that person’s gender identity.  In short, people must be allowed to use the restroom of their choice, consistent with their gender identity.  If, for example, a woman complains about a “man” in the women’s restroom, the new law says that the woman “should be directed to a separate or gender-neutral facility, if available.”

This law also prohibits specific conduct in the workplace, including, for example:

  1. Asking unwelcome personal questions about someone’s sexual orientation, gender identity, transgender status, or sex assigned at birth;
  2. Intentionally causing someone distress by disclosing that information;
  3. Using offensive names, slurs, jokes, or terminology based on that information;
  4. Deliberately misusing the person’s name, form of address, or gender-related pronoun, with narrow exceptions; and
  5. Posting offensive pictures or sending offensive communications.

In some circumstances, harassment based on sexual orientation or gender identity can be imputed to a place of public accommodation, including schools.

Since these laws went into effect late last year, there has been a movement to eliminate or substantially alter the restroom provisions of WAC 162-32-060.  Both the state House and Senate have already passed separate bills designed to accomplish this purpose.

This is a dynamic area of Washington law, so stay tuned for additional updates.

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