On September 15, 2007, the Maine Human Rights Commission finally defined "gender identity" and "gender expression." These changes contemplate that in addition to homosexual, heterosexual, and bisexual employees, employers also have transgender, transsexual, or employees in transition in the workplace and will need to address related issues in a professional, lawful, and sensitive manner in accordance with the 2005 Act to Extend Civil Rights Protection to All People Regardless of Sexual Orientation ("Act").

The Maine Legislature passed the Act in 2005 to protect people from discrimination on the basis of sexual orientation in employment, housing, places of public accommodation, credit extension, and educational opportunity. Sexual orientation is defined as a person's "actual or perceived heterosexuality, bisexuality, homosexuality, gender identity, or gender expression." Though the Act specifically protects "gender expression" and "gender identity," the Act did not include definitions for either term until just recently.

How Does the Maine Human Rights Commission Define "Gender Identity" and "Gender Expression?"

Though the definitions of each term are not in and of themselves controversial, these definitions have sparked concern in the employer community because it is unclear how broadly or narrowly "gender identity" and "gender expression" should be interpreted under the Act. The definitions of each are available on the Maine Human Rights Commission website.

Who is Protected by the New Rules?

Commission staff suggest that the new Rules protect from discrimination only those employees whose full time gender identity and biological sex diverge. The Rules are not intended to protect, for example, cross dressing in the workplace, or discrimination against an employee whose manner of dress is deemed not "feminine" or "masculine" enough for their biological sex. Some suggest that these examples do not evidence a full time disconnect between biological sex and gender identity.

How Should Employers Implement the New Rules?

The Act and these new definitions address the fact that employers currently have transgender or transsexual employees, or employees contemplating transition and will have to deal with issues such as name changes, pronoun usage, dress codes, taking time off for transition, and bathroom use.

Ultimately, the new Rules may be problematic for employers because they suggest that employers should inquire into an employee's gender identity to determine if gender identity differs from biological sex, and if that employee adheres to one gender identity all the time or only some of the time.

Though the Maine Human Rights Commission suggests that each case should involve "an interactive process between the employee and the employer to identify reasonable accommodations that are appropriate under the circumstances," this assurance may not be specific enough to be practical for employers.