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Gender-identity employment discrimination becomes illegal in Delaware

On June 19, 2013, Del. Gov. Jack Markell, a strong advocate for transgender people, signed the Delaware Gender Identity Nondiscrimination Act that adds "gender identity" to the list of classes of people protected from discrimination in employment as well as in housing, public contracts, insurance and public accommodations. This makes Delaware the 17th state to do so, along with the District of Columbia.

The bill also makes the targeting of a crime victim for his or her gender identity a state hate crime subject to tougher punishment.

Governor's support

In advocating for the bill in an editorial in the Huffington Post, Gov. Markell used words like "kindness, decency, and fairness" as well as "safety" and "dignity" as values he wants to promote in Delaware through this bill. He described "gender identity" as meaning "a person's deeply held sense of ... gender" and opined that making gender-identity discrimination illegal is good not only for those individuals who will be protected, but also for the economy and businesses.

By the numbers

Protecting people in their employment from discrimination based on gender identity makes good sense. Here is a closer look at the economic circumstances of transgender people as compared to the general population:

  • Transgender people live disproportionately in poverty.
  • Transgender people are twice as likely to be unemployed, especially those of color.
  • Almost all (90 percent) of transgender people have either experienced "harassment, mistreatment or discrimination" at work or have hidden their transgender identity in the workplace to protect themselves.
  • Almost half of transgender people report employment discrimination like being fired or not hired on the basis of sexual identity.
  • Transgender people fired based on bias have much higher rates of substance abuse, incarceration, work in the "underground economy" (such as prostitution and drug sales), homelessness and positive HIV status.

These statistics are based on findings from the 2011 National Transgender Discrimination Survey by the National Gay and Lesbian Task Force and the National Center for Transgender Equality.

The Delaware definition

The new Delaware law defines "gender identity" as a person's "gender-related identity, appearance, expression or behavior" despite that individual's "assigned sex at birth." The statute says further that gender identify is shown by "consistent and uniform assertion" or other evidence that gender identity is "sincerely held as part of a person's core identity." However, the law does not cover gender identity "asserted for any improper purpose."

The law also requires an employer to let an employee dress consistently with that person's gender identity.

On the federal level

The new Delaware gender identity discrimination ban is consistent with related and developing federal employment discrimination law. For example, the federal Equal Employment Opportunity Commission or EEOC has held that discrimination against transgender people is covered by the federal civil rights ban on sex discrimination.

Seek informed legal counsel

Any Delawarean who feels that he or she has been discriminated against in employment on the basis of gender identity should contact an experienced employment discrimination attorney for advice about the protections of the new state law as well as federal law, and what legal remedies may be available.

View Cases

  • Sheridan v. E. I. DuPont de Nemours & Co., 100 F.3d 1061 (3rd Cir. 1996) (en banc) (Plaintiff's jury verdict and the "pretext only" paradigm for proof of intentional discrimination established).
  • Hawkins v. Division of State Police, et al., C.A. No. 99-297-SLR (Religious discrimination case which successfully obtained an offer of judgment and caused the State to stop using the MMPI-1.
  • Miller v. Daimler Chrysler Corp., C. A. No. 01-827-JJF (D.Del. 2003) (Race Discrimination claim survived Motion for Summary Judgment).
  • Panaro v. J.C. Penny, Inc., C.A. 01C-02-010 JOH, 2002 WL 130692 (Del. Super. 2002)(In a personal injury case, admission into evidence of direct examination of deceased deponent/plaintiff does not.
  • Price, et al. v. L. Aaron Chaffinch, et al., C.A. No. 04-956-GMS, 2006 WL 1313178 (D.Del. 2006) (First Amendment Retaliation, Petitions Clause and Defamation Claims survived Motion for Summary Judgment).
  • Reyes v. Freebery, 141 Fed. Appx. 49 (3d Cir. 2005) (per curiam) remanding to District Court to explain its restrictions on the public's right to access to judicial records and counsel's First Amendment.
  • Underwood v. Sear Roebuck and Co., 343 F.Supp.2d 259 (D.Del. 2004) (Gender discrimination claim survived Motion for Summary Judgment).
  • Shotzberger v. State of Delaware Dept. Of Correction, 2004 WL 758354 (D.Del. Jan. 30, 2004) (Gender discrimination claim survived Motion for Summary Judgement).
  • Stull v. Thomas S. Neuberger, P.A., 2003 WL 21481016 (Del. Super. Febr. 28, 2003) (Effect of Delaware accord and satisfaction law on a contract for legal services).
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