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Delaware Extends Legal Protections to Transgender Individuals

Labor and Employment Alert | June 21, 2013
By: Marc S. Casarino

On June 19, 2013, Delaware Governor Jack Markell signed into law the Gender Identity Nondiscrimination Act of 2013. “Gender Identity” is defined in the Act as “a gender-related identity, appearance, expression or behavior of a person, regardless of the person’s assigned sex at birth.” The Act adds the term “gender identity” to the already-existing list of prohibited practices of discrimination and hate crimes. As such, the Act forbids discrimination against a person on the basis of gender identity in housing, employment, public works contracting, public accommodations, and insurance, and it provides for increased punishment of a person who intentionally selects the victim of a crime because of the victim’s gender identity.

At the press conference announcing the signature of the Act into law, proponents said it is not intended to protect persons using gender identity to access opposite-sex facilities for an “improper purpose.” However, this language is not in the Act. Instead, the Act provides only generally that it is intended to ensure equal rights and not to endorse or confer legislative approval of any unlawful conduct. “Unlawful conduct” is not defined in the Act. The Act therefore does not adequately address how the rights and privileges of others may be balanced against those of a transgender person.

Given the uncertainty surrounding the practical application of the Act’s requirements, companies with business operations within the State of Delaware should promptly consult legal counsel when confronted with circumstances that may be governed by the Act.  Companies contracting with or employing personnel within the State of Delaware should review and update their applications, handbooks, policies and procedures, contracts, and training materials to assure compliance with the Act. Additionally, personnel should be trained on the benefits now afforded to transgender individuals under the Act.

Should you have any questions about the Act or its implications for your business, please contact one of the attorneys at White and Williams LLP.

This correspondence should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult a lawyer concerning your own situation and legal questions.
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