Using the chart of state gender identity laws that I posted on this site in 2013,* I am highlighting here the states in which gender identity laws have been passed and, at the same time, protection for certain forms of sex-segregation is explicitly allowed by the same or a related statute. (To see the full chart, click on the link above and download the excel file.*)
- The definition of “gender identity” (or reference to transgender status) is shown in column D
- The statutory language protecting sex-segregation in certain, named, spaces is in column C
In states where “gender identity” is positioned as a direct override to sex—i.e., “regardless of sex,” whether or not “different from that traditionally associated with the person’s sex at birth,” etc.—an unavoidable and unprecedented legal conflict is created. This legal conflict applies specifically, and is limited, to single-sex contexts and classifications.
While many gender identities can exist in a single-sex space, single-sex spaces cannot accommodate people with a sex different from the one it is designed to serve. By definition, once a person of a different sex is admitted to the single-sex space, the space is no longer single-sex.
I have added red text to highlight the exact statutory phrasing that creates or constitutes a (potential) conflict between sex and gender identity. The protections vary in their construction but the overall legislative message is one of recognition that sex-segregation is legitimate and appropriate in certain circumstances. An interesting exercise in compare and contrast!!
There is statutory support in the following states for certain single sex spaces and classifications, particularly in places of public accommodation:
- New Mexico
- Rhode Island
*Laws may have been updated!
|STATE||Year||EXCEPTION LANGUAGE for SEX||“Gender identity” definition (overriding sex)||State law|
|Colorado||2007||(3) Notwithstanding any other provisions of this section, it is not a discriminatory practice for a person to restrict admission to a place of public accommodation to individuals of one sex if such restriction has a bona fide relationship to the goods, services, facilities, privileges, advantages, or accommodations of such place of public accommodation.||“Sexual orientation” means a person’s actual or perceived orientation toward heterosexuality, homosexuality, bisexuality, or transgender status||Colorado Revised Statutes 24-34-401; Colo. Rev. Stat. § 2-4-401 (13.5).|
|Connecticut||2011||The provisions of this section with respect to the prohibition of sex discrimination shall not apply to (A) the rental of sleeping accommodations provided by associations and organizations which rent all such sleeping accommodations on a temporary or permanent basis for the exclusive use of persons of the same sex or (B) separate bathrooms or locker rooms based on sex.||“Gender identity or expression” means 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, which gender-related identity can be shown by providing evidence including, but not limited to, medical history, care or treatment of the gender-related identity, consistent and uniform assertion of the gender-related identity or any other evidence that the gender-related identity is sincerely held, part of a person’s core identity or not being asserted for an improper purpose.||Conn. Gen. Stat. § 4a-60a(21). (1)|
|Delaware||2013||A place of public accommodation may provide reasonable accommodations based on gender identity in areas of facilities where disrobing is likely, such as locker rooms or other changing facilities, which reasonable accommodations may include a separate or private place for the use of persons whose gender-related identity, appearance or expression is different from their assigned sex at birth, provided that such reasonable accommodations are not inconsistent with the gender-related identity of such persons.||“Gender identity” means a gender-related identity, appearance, expression or behavior of a person, regardless of the person’s assigned sex at birth. Gender identity may be demonstrated by consistent and uniform assertion of the gender identity or any other evidence that the gender identity is sincerely held as part of a person’s core identity; provided, however, that gender identity shall not be asserted for any improper purpose.||TBD|
|Hawaii||2005||The provision of separate facilities or schedules for female and for male patrons does not constitute a discriminatory practice when such separate facilities or schedules for female and for male patrons are bona fide requirements to protect personal rights of privacy.||“Gender identity or expression” includes a person’s actual or perceived gender, as well as a person’s gender identity, gender-related self-image, gender-related appearance, or gender related expression, regardless of whether that gender identity, gender-related self-image, gender-related appearance, or gender related expression is different from that traditionally associated with the person’s sex at birth.“||HRS § 489-2, HAW. REV. STAT. 515-2 (definitions)|
(775 ILCS 5/5-103) (from Ch. 68, par. 5-103)
Sec. 5-103. Exemption. Nothing in this Article shall apply to:
(A) Private Club. A private club, or other establishment not in fact open to the public, except to the extent that the goods, services, facilities, privileges, advantages, or accommodations of the establishment are made available to the customers or patrons of another establishment that is a place of public accommodation.
(B) Facilities Distinctly Private. Any facility, as to discrimination based on sex, which is distinctly private in nature such as restrooms, shower rooms, bath houses, health clubs and other similar facilities for which the Department, in its rules and regulations, may grant exemptions based on bona fide considerations of public policy.
(C) Inn, Hotel, Rooming House. Any facility, as to discrimination based on sex, which restricts the rental of rooms to individuals of one sex.
|(O) Sex. “Sex” means the status of being male or female. (O-1) Sexual orientation. “Sexual orientation” means actual or perceived heterosexuality, homosexuality, bisexuality, or gender-related identity, whether or not traditionally associated with the person’s designated sex at birth. “Sexual orientation” does not include a physical or sexual attraction to a minor by an adult.|
|Iowa||2007||Discrimination on the basis of sex involving the rental, leasing, or subleasing of a dwelling within which residents of both sexes would be forced to share a living area.
This section does not prohibit an educational institution from maintaining separate toilet facilities, locker rooms, or living facilities for the different sexes so long as comparable facilities are provided. (216.9 (2))
|“Gender identity” means a gender related identity, appearance, expression, or behavior of a person, regardless of the person’s assigned sex at birth.||Iowa Code, Chapter 216; 216.2(10) (definitions)|
|Massachusetts||2011||5) a rest room, barber shop, beauty parlor, bathhouse, seashore facilities or swimming pool, except such rest room, bathhouse or seashore facility as maybe segregated on the basis of sex; or (10) a hospital, dispensary or clinic operating for profit; provided, however, that with regard to the prohibition on sex discrimination, this section shall not apply to a place of exercise for the exclusive use of persons of the same sex which is a bona fide fitness facility established for the sole purpose of promoting and maintaining physical and mental health through physical exercise and instruction, if such facility does not receive funds from a government source, nor to any corporation or entity authorized, created or chartered by federal law for the express purpose of promoting the health, social, educational vocational, and character development of a single sex;||“Gender identity” shall mean 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. Gender-related identity may be shown by providing evidence including, but not limited to, medical history, care or treatment of the gender-related identity, consistent and uniform assertion of the gender-related identity or any other evidence that the gender-related identity is sincerely held, as part of a person’s core identity; provided however, gender-related identity shall not be asserted for any improper purpose.||General Laws/PartIV/TitleI/ Chapter272/Section92a|
|Minnesota||1993||The provisions of section 363A.11 relating to sex, shall not apply to such facilities as restrooms, locker rooms, and other similar places. The provisions of section 363A.11 do not apply to employees or volunteers of a nonpublic service organization whose primary function is providing occasional services to minors, such as youth sports organizations, scouting organizations, boys’ or girls’ clubs, programs providing friends, counselors, or role models for minors, youth theater, dance, music or artistic organizations, agricultural organizations for minors, and other youth organizations, with respect to qualifications based on sexual orientation.
Subd. 2. Athletic team, program, or event. The provisions of section 363A.11 relating to sex, do not apply to restricting membership on an athletic team or in a program or event to participants of one sex if the restriction is necessary to preserve the unique character of the team, program, or event and it would not substantially reduce comparable athletic opportunities for the other sex.
|“Sexual orientation” means having or being perceived as having an emotional, physical, or sexual attachment to another person without regard to the sex of that person or having or being perceived as having an orientation for such attachment, or having or being perceived as having a self-image or identity not traditionally associated with one’s biological maleness or femaleness.||MINN. STAT. §363A.01 to §363A.41; specifically 363A.02|
|New Mexico||2003||Nothing contained in the Human Right Act apply to public restrooms, public showers, public dressing facilities or sleeping quarters in public institutions, where the preference or limitation is based on sex.||“gender identity” means a person’s self-perception, or perception of that person by another, of the person’s identity as male or female based upon the person’s appearance, behavior or physical characteristics that are in accord with or opposed to the person’s physical anatomy, chromosomal sex or sex at birth.”||N.M. Stat. Ann. § 28-1-2(Q), 28-17, 28-1-9|
|Rhode Island||2001||Sex discrimination — Limitation on prohibition Nothing contained in this chapter that refers to “sex” shall be construed to mandate joint use of restrooms, bath houses, and dressing rooms by males and females.||“gender identity or expression” includes a person’s actual or perceived gender, as well as a person’s gender identity, gender-related self image, gender-related appearance, or gender-related expression; whether or not that gender identity, gender-related self image, gender-related appearance, or gender-related expression is different from that traditionally associated with the person’s sex at birth.||R.I. Gen. Laws § 28-5-3 (2001), R.I. Gen. Laws § 28-5-7 (2001), R.I. Gen. Laws § 34-37-4 (2001), R.I. Gen. Laws § 34-37-4.3 (2001), R.I. Gen. Laws § 11-24-2 (2001) (<<CRIMINAL violation)|