Women's Rights Employment Law Blog

Dr. Jillian Todd Weiss has five concerns regarding the new NJ Law:

I am concerned that "transgender" may not retain its positive, non-derogatory meaning. In an example from the transgender context, in the early 1980s, Seattle passed a trans-inclusive nondiscrimination law using the broad term (they thought): transvestite. This term has since taken a negative and more limited connotation, causing the Seattle City Council to need to revise its nondiscrimination law only about twenty years later. Terms from other contexts involving groups of people who experience discrimination that demonstrate my concern about popular terminology acquiring a negative connotation include "colored people" and "handicapped." "Transgender" may not always have a positive connotation and may
fall out of favor.

The second concern is that the bill, before the amendment, utilized the best approach for discrimination protections: it used terminology that covers all people, rather than a specific, protected group of people. American non-discrimination laws are generally framed to prohibit discrimination on the basis of certain characteristics, like sex or race, not specific examples of people within those categories, like women or African-Americans. Just as it was unnecessary and would have been inadvisable to add "Race includes black status" to race discrimination laws, this "transgender status" clarifying amendment could unintentionally have a limiting or confusing effect on interpretations of the law. Adding just this one group-based identity to the bill’s language makes the bill conceptually incoherent and inconsistent with similar laws; either problem could negatively affect the interpretation of its provisions.

Our third concern is that this language is out-of-step with other laws protecting transgender and gender non-conforming people from discrimination. Eight states have passed similar laws, and none of them use the term "transgender people" or any similar term. No other state legislature, administrative agency or court has found that this type of clarifying amendment was necessary, nor has there been confusion that transgender people are not covered by these laws. Also, in drafting the federal Employment Non-Discrimination Act, which is expected to be introduced this Spring, the LGBT attorneys involved in drafting, including myself, specifically rejected using the term "transgender" for many of the reasons covered in this letter. For consistency throughout the nation, and for New Jersey to be in-step with the federal bill that will eventually become law, it is best that New Jersey use relatively similar language. With similar language throughout the U.S., courts can utilize each other’s interpretations to develop a common case law that all jurisdictions can draw upon. For your reference, the definitional language of the eight states is attached as an Appendix.

Our fourth concern is about the term "status." How it would be interpreted in this context is unclear. Would transgender people have to prove that they have achieved "status?" Would someone in the early stages of transition (often when discrimination occurs) qualify as having attained that status? "Status" implies a fixity that does not capture or address the reality of discrimination against transgender people.

Our fifth concern is not about New Jersey's interpretations, but is about future interpretations of other state and federal laws. Including this term in New Jersey's law could cast doubt on what is covered by laws in other jurisdictions that do not include such language. It could beg the question, are transgender people not covered if the law only includes "gender identity or expression?" From a national perspective, the language used in New Jersey could influence other jurisdictions to either adopt the same language (cause for concern by itself for the above-mentioned reasons) and/or could negatively affect the interpretation of similar laws that lack New Jersey's additional sentence.