The General Assembly passed Senate Bill 212: The Fairness for All Marylanders Act last month. However, opponents of fairness are trying to misrepresent what this law does. Take a moment to find out what this important law actually does.
What is the Fairness For All Marylanders Act?
The Fairness For All Marylanders Act is a new state law that updates Maryland’s existing Civil Rights Law to include protection on the basis of gender identity.
The existing Civil Rights Law of Maryland (codified in Title 20 of the State Government Article) prohibits discrimination on the basis of several protected classifications: race, sex, age, color, national origin, religion, marital status, sexual orientation, and disability. These are personal characteristics that most people agree should not be relevant to whether a person is allowed to have a job, or eat at a restaurant, or rent an apartment, or qualify for a credit card. So, the Civil Rights Law prohibits discrimination on the basis of those personal characteristics in the areas of employment, housing, credit and other licensed services, and places of public accommodation.
The Fairness For All Marylanders Act adds “gender identity” to that list of protected classifications. It prohibits discrimination on the basis of gender identity in employment, housing, credit and other licensed services, and places of public accommodation.
What is the meaning of “gender identity” in this bill?
“Gender identity,” means the “gender-related identity, appearance, expression, or behavior of a person, regardless of the person’s assigned sex at birth.”
The Act provides that a person’s gender identity may be demonstrated by the “consistent and uniform assertion” of their gender identity or any other evidence that the gender identity is “sincerely held as part of the person’s core identity.”
So, the Act’s definition of “gender identity” only includes an identity that is sincerely held as part of a person’s core identity.
This definition was proposed by Republican Senator Joseph Getty, and is consistent with the definition adopted in other states that have enacted gender identity protections, including Delaware, Connecticut, and Massachusetts.
Why do we need this law?
Everyone has a gender identity – an innate, core sense of oneself as male or female. But the people who are most in need of the protection of this law are people who are transgender. Transgender persons are people whose gender identity does not correspond with their sex assigned at birth. Many transgender people decide to transition – to live their lives in their true, authentic gender identity rather than the sex they were assigned at birth.
You may know some transgender people in your own life – your family, friends, co-workers, or neighbors. Or, you may know some transgender people who are in public life or on TV or in the news. Transgender people are just like everyone else: they want to be able to work, shop, eat dinner, and go home at night without the fear that someone will discriminate against them for who they are.
A study conducted in Maryland showed an astounding level of discrimination faced by transgender people:
- 71% of transgender Marylanders reported experiencing harassment or mistreatment on the job because of their gender identity, and 42% experienced an adverse job action, like being fired, demoted, or denied a promotion
- 17% of transgender Marylanders reported having been denied a home or apartment because of their gender identity, and 12% became homeless
- 54% of transgender Marylanders reported having been verbally harassed or mistreated in a place of public accommodation such as a hotel or restaurant
It isn’t fair to discriminate against someone just because of who they are. It shouldn’t matter what your gender identity is for you to have a job, rent an apartment, eat at a restaurant, shop at a store, or qualify for a loan. That’s why we need the Fairness For All Marylanders Act.
How many transgender people are there in Maryland?
We don’t know for sure how many transgender people there are in Maryland. There are a number of reasons for that. First, there isn’t anyone collecting this data. It’s not something the U.S. Census or other agencies keep track of. Second, many transgender people are not public about their identities, so they might not tell anyone about it.
However, estimates are between 0.5% to 5% of the population is transgender. The population of Maryland is approximately 5.9 million. So the most conservative estimate of .5% would mean that about 29,500 Maryland citizens are transgender. And the most expansive estimate of 5% would mean that there are 295,000 transgender Marylanders.
Is the Fairness For All Marylanders Act a radical change to the law?
No. Adding protection on the basis of gender identity to civil rights law is a mainstream idea, and it’s the right thing to do. Five localities in Maryland, comprising about half the state’s population, already prohibit discrimination on the basis of gender identity (Baltimore City (2001), Baltimore County (2012), Montgomery County (2007), Howard County (2011), and the City of Hyattsville (2013)). So do seventeen other states and the District of Columbia, as well as almost 200 localities nationwide.
Does this law mean that all public facilities will have to be open to anyone – regardless of gender or gender expression?
No. The public accommodations provisions in the Fairness For All Marylanders Act do not apply to “all public facilities”—they only apply to “places of public accommodation” which are narrowly defined as hotels, restaurants, entertainment and recreation establishments such as movie theaters and sports arenas, and retail stores.
What the law requires is that a place of public accommodation may not discriminate on the basis of gender identity—which is a person’s innate, sincerely-held internal sense of self as male or female. Under the legislation, a person’s gender identity must be “sincerely held as part of the person’s core identity.” In other words, this law provides protection for transgender men and women: people who deeply and innately identify as a gender other than their gender assigned at birth.
What exactly is a “public accommodation”?
The existing Civil Rights Law of Maryland prohibits discrimination on the basis of race, sex, age, color, creed, national origin, marital status, sexual orientation, or disability in a “place of public accommodation.” The term “place of public accommodation” is specifically defined in the state Civil Rights Law (the definition is copied from the 1964 federal law that outlawed racial discrimination in places of public accommodation). The Fairness for All Marylanders Act does not change the definition.
Under the law, “place of public accommodation” means one of four things:
- a hotel, motel, or other “establishment that provides lodging to transient guests”
- a restaurant, cafeteria, bar, or other “facility principally engaged in selling food or alcoholic beverages for consumption on or off the premises”
- a movie theater, concert hall, sports arena, or other “place of exhibition or entertainment,” or
- a “retail establishment” that offers “goods, services, entertainment, recreation, or transportation”
A facility that is contained within one of the four listed types of facilities also qualifies, as does a facility that contains one of the four listed types of facilities.
In essence, places of public accommodation are the public places where we all live our social and civic lives—where we go for eating, shopping, entertainment, and recreation: stores, restaurants, bars, movie theaters, bowling alleys, hotels, and so on.
How does the Fairness For All Marylanders Act apply to places of public accommodation?
With one exception (for “private facilities,” as defined in the law – see below for a discussion of this exception), the Act simply adds “gender identity” to the list of protected classifications under the Civil Rights Law (along with race, sex, age, color, creed, national origin, marital status, sexual orientation, and disability), and makes no other changes.
This means that a store, restaurant, bar, or movie theater cannot discriminate against someone on the basis of their gender identity. Transgender Marylanders, like all other Marylanders, are entitled to patronize stores, restaurants, and other places of public accommodation without fear of discrimination.
Is this a “bathroom bill?” Does “public accommodation” just mean a restroom?
No. The Fairness For All Marylanders Act is not a “bathroom bill.” As discussed, the term “place of public accommodation” includes establishments like restaurants, hotels, and stores. It does not mean a restroom.
However, if an establishment is a place of public accommodation (such as a store or restaurant), all facilities in that place of public accommodation, including the restrooms, are covered by the Civil Rights Law, and cannot be offered on a discriminatory basis.
The public accommodations provisions of the Civil Rights Law as it already exists contains an exception from the prohibition on sex discrimination for facilities of a place of public accommodation that are “distinctly personal and private” and are “designed to accommodate only a particular sex.” This means that establishments can have separate men’s and women’s restrooms, changing rooms, locker rooms, and so forth. The Fairness for All Marylanders Act does not change this.
Where do transgender people use the restroom now, and how will that change under this law?
Transgender people ordinarily use the restroom that is consistent with their gender identity—their core identity as male or female. This law does not change that. It simply allows transgender persons to do so without fear of discrimination.
As discussed, the existing Civil Rights Law expressly permits establishments to have separate men’s and women’s restrooms, and the Fairness For All Marylanders Act does not change that. This law does not entitle a person whose core identity is female to use the men’s room, or whose core identity is male to use the women’s room.
Does this mean that both men and women would be able to use any and every public bathroom, locker room, store dressing room, and shower in the state of Maryland?
No. The Fairness For All Marylanders Act does not mean that men and women can use any restroom they please. Maryland law already explicitly provides that men and women may be required to use separate bathrooms. As mentioned above, the existing Civil Rights Law contains a provisions that allows establishments to have separate men’s and women’s restrooms, changing rooms, locker rooms, and so forth. The Fairness For All Marylanders Act does not change this.
What the Fairness For All Marylanders Act provides is that, if an establishment is a place of public accommodation (such as a store or restaurant), all facilities in that place of public accommodation, including the restrooms, are covered by Maryland Civil Rights Law and cannot be offered on a discriminatory basis on the basis of gender identity.
This means that, in a place of public accommodation, a person should be permitted to use the restroom consistent with their gender identity—their sincerely held core identity as male or female. But this Act does not entitle a person whose core identity is male to use the women’s room, or whose core identity is female to use the men’s room. A“man pretending to be a woman” or a person who would wear clothing of the opposite gender for improper or illegal purposes is not protected by this law.
Moreover, the law contains an exemption for what are called “private facilities.” “Private facilities” are facilities in a place of public accommodation that are single-sex, multi-user spaces where it is customary to disrobe in view of others—such as a locker room, or a communal dressing room or shower. To take advantage of this exception, all an establishment has to do is make a functionally equivalent private space available for a transgender person to use. Many establishments already make such private spaces available for people or families who, for whatever reason, desire more privacy when they are changing clothes. For such facilities, this bill imposes no extra burden at all.
Does this mean that men will be able to dress up as women and use the women’s room?
No. This law does not entitle a person whose core identity is male to use the women’s room, or whose core identity is female to use the men’s room. Even if a man dresses up as woman, if his sincerely held, core identity is male, he cannot use the women’s room. This Act does not change that.
Moreover, this law does not change or weaken Maryland’s criminal laws in any way. If someone goes into a restroom to ogle or expose themselves or harass or assault someone, what they are doing is illegal and they will be prosecuted – regardless of how they are dressed or what their sex is or what their gender identity is.
Under this law, will girls be exposed to male genitalia in the bathroom?
No. This law does not change the current criminal laws in our state. It is already illegal for a man to come into a women’s bathroom and expose his penis. That would continue to be the case. Most transgender women (whose assigned sex at birth was male) currently use the women’s bathroom. We want people to be able to use the bathroom that matches how they look on the outside. This is what makes sense and is safest for the transgender person and the other people using the bathrooms. There is no evidence of any incident like this happening either here in Maryland or elsewhere in the country.
What exception was made for locker rooms and other “private facilities”?
The Fairness For All Marylanders Act exempts “private facilities” (which are defined as places that are designed to accommodate only one sex, are designed to be used simultaneously by more than one person, and where it is customary to disrobe in view of other users of that facility) from being included in the definition of “public accommodations” where gender identity is concerned. For instance, a locker room would be an example of a “private facility.”
If an establishment that is a place of public accommodation has a private facility on its premises that they want to be exempt, such as a locker room, the establishment is required to provide “equivalent space” for transgender patrons. This is defined as a space that is “functionally equivalent to the space made available to other users.”
This amendment is written is such a way to not unduly burden private facilities. This does not mean that gyms will have to build separate locker rooms if they want to claim this exemption. A private space could be a curtained off area within an existing locker room, or an existing private, single-user facility with equivalent amenities. In fact, this is already what is done at the YMCA in Silver Spring and Baltimore.
Are schools covered by the “public accommodations” provision?
No. A school is not a “place of public accommodation” as defined by law, because it is not a hotel, restaurant, theater, retail store, or similar establishment. Therefore, the public accommodation provisions of the Civil Rights Law do not apply to schools. The Fairness For All Marylanders Act does not change that.
Does this mean schools will be unable to prevent men and boys from entering female locker rooms and will mean that men and boys will play on women’s and girls’ sports teams?
No. The public accommodations provisions of the Fairness For All Marylanders Act do not apply to schools. A school is not a “place of public accommodation.” Neither is a sports team.
In addition, even in places that do qualify as “places of public accommodation,” a locker room is exempt so long as functionally equivalent private space is made available.
Will employers be able to establish dress codes?
Yes. The Fairness For All Marylanders Act explicitly allows employers to establish dress codes. An employer can maintain separate dress codes for men and women that are related to the nature of the employment. To quote the Act, it states that it “does not prohibit … an employer from establishing and requiring an employee to adhere to reasonable workplace appearance, grooming, and dress standards” as long as the employer “allows any employee to appear, groom, and dress consistent with the employee’s gender identity.”
Will this law infringe on freedom of conscience and religion?
No. The Fairness For All Marylanders Act completely exempts religious employers, such as churches, charities, ministries, religious schools, and religious hospitals. The religious exemption is modeled after the very broad religious exemption already contained in federal employment law. In addition, nothing at all in the Fairness For All Marylanders Act regulates individuals’ right to free expression and freedom of religion.
As the Maryland Court of Appeals has interpreted the religious exemption (in a 2001 case called Montrose Christian School v. Walsh), the exemption means that the Civil Rights Law’s prohibition of employment discrimination on the basis of religion or sexual orientation simply does not apply to religious organizations. The Fairness For All Marylanders Act includes gender identity in the exemption for religious organizations. Therefore, the Act does not prohibit a religious organization from discriminating on the basis of gender identity in whom the religious organization chooses to hire. Religious organizations will be free to follow the dictates of their faith with respect to gender identity in their employment decisions.
Will this law allow lawsuits against someone who calls an individual ‘he’ instead of ‘she’?
No. It is impolite to call someone by a gender other than the gender by which they identify. But the Fairness For All Marylanders Act will not make it illegal. Nothing in the bill authorizes a lawsuit to be filed against an individual for speaking their mind or even insulting someone. The law prohibits “discrimination” on the basis of gender identity—discrimination is specifically defined as:
- firing, refusing to hire, or changing a person’s conditions of employment
- denying someone housing or offering housing at a discriminatory price
- discriminating in offering a licensed service such as credit, or
- not allowing a person to use an establishment that is a place of public accommodation on equal terms with other users.
The act simply does not apply to a person who is not an employer, a seller of housing or landlord, someone who offers a state-licensed service, or the proprietor of a place of public accommodation.