Discrimination on the basis of sexual orientation and gender identity by educational institutions

A couple of years ago, a constituent reached out to Senator Brownsberger’s office with a concern: despite recent legislation signed by Governor Baker protecting people from discrimination in public accommodations on the basis of gender identity, the constituent would not be protected against discrimination based on her gender identity by institutions of higher education under our existing statutes. When we first received the communication, we were surprised, as we had thought our existing statutes would protect people against discrimination on the basis of gender identity in all settings where our Massachusetts non-discrimination laws apply– something the Senator had fought for alongside advocates and many of his legislative colleagues for years.  But it turned out to be true: the statute preventing unfair educational practices does not list gender identity among the classes protected against discrimination by institutions of higher education.

In January, to address this concern and to ensure that transgender individuals could not be discriminated against by insitutions of higher education in Massachusetts, Senator Brownsberger filed S858, An Act relative to preventing discrimination on the basis of sex, sexual orientation, and gender identity.

We recognize that this legislation needs some more work. It is not the Senator’s intention, for example, that the bill require women’s colleges to change their admissions policies to require them to admit men, which the bill could potentially be read to require, as drafted. We are committed to working with the Joint Committee on the Judiciary to redraft the legislation so that our statutes allow policies like Wellesley College‘s:

Wellesley will consider for admission any applicant who lives as a woman and consistently identifies as a woman. Therefore, candidates assigned male at birth who identify as women are eligible to apply for admission. The College also accepts applications from those who were assigned female at birth, identify as non-binary, and who feel they belong in our community of women. Those assigned female at birth who identify as men are not eligible for consideration for admission.  

This redrafting work will require a thoughtful approach that bears in mind the various compositions of our institutions of higher education in Massachusetts while protecting people from discrimination that does real harm. We are committed to that work.

Published by Anne Johnson Landry

Anne works as Committee Counsel and Policy Advisor to Senator Brownsberger.

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