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Massachusetts Government Can Force Transgender Bathroom Policies On Churches, Guidance Says

Under a Massachusetts civil rights agency’s interpretation of new anti-discrimination law, churches can be forced to let biological males who identify as transgender women use the women’s bathroom.

Recently passed legislation amending the state’s anti-discrimination law to include protections for “gender identity” will take effect Oct. 1.

The Massachusetts Commission Against Discrimination, which enforces the state’s anti-discrimination laws, recently published a “Gender identity guidance” that lays out what will be legally required of employers and “agents of places of public accommodation.”

Faithful attend a Thanksgiving Mass for newly elected Pope Francis at Saint Ignatius church in Newton, Massachusetts March 19, 2013. REUTERS/Brian Snyder   Faithful attend a Thanksgiving Mass for newly elected Pope Francis at Saint Ignatius church in Newton, Massachusetts March 19, 2013. REUTERS/Brian Snyder   

The guidance was published Sept. 1 but has gone unreported by the media until now. The commission confirmed that the version of the guidance online is the “final edition.”

Beginning Oct. 1, the guidance notes, “All persons, regardless of gender identity, shall have the right to the full and equal accommodations, advantages, facilities and privileges of any place of public accommodation.”

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The guidance notes that Massachusetts law defines “public accommodation” as “any place, whether licensed or unlicensed, which is open to and accepts or solicits the patronage of the general public.” (Restaurants and hotels, for example, are generally considered public accommodations.) Violators of the law face up to one year in jail.

The guidance notes that “any place of public accommodation that lawfully separates access to a place or portion thereof based on a person’s sex, shall grant admission to that place, and the full enjoyment of that place or portion thereof, consistent with the person’s gender identity.”

“This means that a movie theater that has restrooms designated as ‘Men’s Restroom’ and ‘Women’s Restroom’ must allow its patrons to use the restroom which is consistent with their gender identity. A health club with locker rooms designated as male and female must grant all persons full enjoyment of the locker room consistent with their gender identity. A public swimming pool with changing rooms designated male and female must allow the public to use the changing room consistent with their gender identity.”

The guidance suggests that Massachusetts may force churches to comply with the new legislation.

“Even a church could be seen as a place of public accommodation if it holds a secular event, such as a spaghetti supper, that is open to the general public,” the guidance notes.

The guidance does not specify what criteria the government would use to determine whether or not church events are considered “secular.”

Matt Sharp, an attorney with religious liberty law firm Alliance Defending Freedom, said the law represents a clear violation of the First Amendment. Sharp added that the commission is wrong to claim that churches could become “public accommodations” simply by holding a “spaghetti supper.” (RELATED: Lawsuit: Iowa Trying To Censor Church’s Teaching On Sexuality, Force Transgender Bathroom Access)

A spokesperson for the commission claimed the guidance “addresses religious freedom and first amendment rights.” A footnote to the guidance states that “All charges, including those involving religious institutions or religious exemptions, are reviewed on a case-by-case basis.” The guidance makes no other mention of religion or places of worship.

In addition to regulating public accommodations’ bathroom policies, the new legislation will impose strict standards on employers of transgender persons. (RELATED: New York City Lets You Choose From 31 Different Gender Identities)

The guidance indicates that employers are required to address their employees by their preferred name and pronouns and let them use whichever bathroom most closely aligns with their gender identity, regardless of their biological sex.

“In evaluating a claim of hostile work environment based on gender identity, the Commission considers the employer’s evidence of its support for the employee,” the guidance notes.

Massachusetts law defines “gender identity” as “a person’s gender-related identity, appearance or behavior, whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person’s physiology or assigned sex at birth.”

“The statutory definition of gender identity does not require the individual to have gender affirming surgery or intend to undergo surgery, nor does it require evidence of past medical care or treatment,” the guidance notes.

The guidance goes on to state, “In most situations arising in employment, housing, mortgage services and places of public accommodation, it will not be appropriate to request documentation of an individual’s gender identity.”

“In the limited circumstances where it is necessary, an individual’s gender identity may be demonstrated by any evidence that the gender identity is sincerely held as a part of the person’s core identity.”

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