Effective June 30, 2018, the Massachusetts Legislature enacted the Equal Pay Act, which prohibits employers from paying an employee less than “employees of a different gender for comparable work.” This new law, replacing a 1945 statute rendered ineffectual by decades of judicial narrowing, reinvigorated a key tool in redressing and reversing the systemic underpayment in the workplace of women relative to their male counterparts.

Left unclarified, however, is whether and how the Equal Pay Act applies to employees whose gender identity otherwise differs from their physiology or biological sex, including transgender individuals. Although the Legislature six years ago recognized the complexity of gender when it formally cemented gender identity as a protected class, neither the Equal Pay Act nor the Attorney General’s extensive guidance directly addresses the issue.

The Equal Pay Act should, by its spirit, title, and clues to its drafters’ intent, require equal pay for all employees, regardless of gender or gender identity. But, given the complexity of gender identity and its perhaps imperfect fit within the Act as written, additional statutory or regulatory guidance is warranted.

Gender Identity In The Workplace

The Legislature’s 2012 “Act Relative To Gender Identity” amends existing antidiscrimination laws to add as a protected class “gender identity,” defined 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.” Previously, Chapter 151B’s only gender-related protected classes were “sex” and “sexual orientation.”

The Legislature’s expansive “gender identity” definition encompasses, but is not limited to, transgender individuals, whose gender identity differs from the biological sex assigned to them at birth. This would include, for example, individuals who are born as one sex but identify as another or combination, whether or not the individuals conform their appearance, their gender expression or, through gender-affirming surgery, their physiology to their gender identity. Some individuals do not identify with any gender. The statutory definition even includes individuals who identify as their born sex, but do not conform their “appearance or behavior” to “traditional” gender norms or expectations.

Although various Massachusetts courts had already ruled or opined that an individual’s nonconformance with gender norms falls within the protected class of “sex,” the Legislature’s 2012 Act added expansive protection, and public recognition, to workers of nontraditional gender identity. Further, in 2016, the MCAD issued guidance to identify several examples of prohibited gender identity discrimination, including: retaliating against a transgender employee’s medical leave for gender-affirming procedures, refusing to call a transgender employee by their chosen name and gender pronoun, and prohibiting a transgender individual from using the bathroom of their identified gender.

The Equal Pay Act

In 1945, the Massachusetts Legislature enacted its first Equal Pay Act to require male and female employees to be paid equally. That statute prohibited wage discrimination “as between the sexes” and required that employees receive the same wages as “employees of the opposite sex for work of like or comparable” work or operations. But because the 1945 statute failed to define “like or comparable,” the courts so narrowed the act’s scope that claimants largely abandoned it as a remedy.

More than 70 years later, in 2016, the Legislature enacted “An Act To Establish Pay Equity,” which rewrote the 1945 statute to restore its intended power and to address other causes of systemic pay disparity. “An Act To Establish Pay Equity” also, separately from replacing the Equal Pay Act, created a “special commission to investigate, analyze and study the factors, causes and impact of pay disparity based on race, color, religious creed, national origin, gender identity, sexual orientation, genetic information…ancestry, disability, and military status” (notably absent is sex).

The rewritten Equal Pay Act now references “gender”—undefined in the statute—instead of “sex.” Instead of prohibiting disparity between employees of the “opposite sex,” the new statute prohibits employers from wage discrimination “on the basis of gender,” including paying an employee “less than the rates paid to its employees of a different gender for comparable work[.]” Notably, the statute does not require discriminatory intent or animus; an employer violates the Equal Pay Act even by innocently paying one employee less than an employee “employees of a different gender.” The law provides a private right of action to employees, who can recover double the amount of underpayment for the previous three years, along with a recovery of reasonable attorneys’ fees and costs.

The Legislature, in addition to providing an individual remedy, also sought to reduce systemic gender-based wage disparity through other means. First, the Equal Pay Act prohibits employers from asking applicants about their wage history. This requires the employer to offer an applicant wages consistent with the work, rather than allowing the employer to continue the applicant’s gender-based historical receipt of discriminatorily-low wages from previous employers. Second, the Legislature encouraged employers to proactively and voluntarily address gender-based pay disparity, by offering an affirmative defense to employers who undertake a self-evaluation of their pay practices “and can demonstrate that reasonable progress has been made towards eliminating wage differentials based on gender for comparable work[.]”

Finally, the Attorney General is empowered to issue regulations interpreting and applying the Equal Pay Act. The Attorney General’s Office has not yet enacted formal regulations, but has issued informational guidance on its website, including a 30-page “Overview and Frequently Asked Questions” document (which, the document disclaims, “does not constitute legal advice”). The Attorney General’s guidance currently is silent on issues of gender identity.

The Implications Of Gender Identity And The Equal Pay Act

Whether and how the Equal Pay Act treats transgender and other gender-nonconforming employees is a gray area that poses risks for employers and uncertainty for employees. The issues can become quite thorny.

Consider, for example, an employee who was born as a biological woman and, until one year ago, presented outwardly as female (all the while, in secret, identifying as a man). Last year, the employee transitioned into living publicly as a man. Suppose that this person, from years of discriminatory pay disparity while living publicly as a woman, now earns significantly smaller wages than the employee’s male coworkers.

In this scenario, the employee truly suffered gender-based wage discrimination in the past while living as a woman, and even after publicly identifying as a man continues to receive wages less than his male coworkers. But how the Equal Pay Act treats gender identity could cause diverging results.

If the statute’s use of “gender” connotes only born biological sex, then the employee would be considered a woman—contrary to the employee’s gender identity—and thus certainly entitled to the Act’s relief. The employee would receive redress, but perhaps accompanied with the repugnant implication that the law deems the employee’s “gender” different from his gender identity.

If, on the other hand, the statute considers “gender” to include gender identity, other complications may arise. Is this same employee—born biologically a woman, always identifying as a man but until only recently outwardly presenting as a woman—because he currently identifies as male, precluded from recovery because, as a male, his higher-paid male coworkers are not of a “different gender”? Would the law recognize a right for the employee, always identifying as male, to recover for past wage inequality based on physiological sex?

A related question is whether the law would consider a cisgender individual (that is, one who identifies with the gender of his or her born biological sex) to be a “different gender” as an employee who is not cisgender. For example, does the law consider a person born a man to be a “different gender” from a person born a woman but with the gender identity of a man?

What Did The Legislature Intend?

The Equal Pay Act’s text, by itself, does not answer these questions. Principles of statutory construction suggest, though perhaps not conclusively, an expansive prohibition of pay disparity “based on gender,” including gender nonconformance and gender identity.

The 1945 version of the Equal Pay Act, requiring one “sex” to be paid the same as the “opposite sex,” clearly sought to distinguish between biological sex rather than gender identity, a concept that would not gain any measure of mainstream understanding for decades. Where the Legislature chose to repair this statute as codified, rather than enact a new section of the Massachusetts General Laws, one might argue the Legislature arguably intended to accomplish the statute’s original goal: eliminating pay disparity between cisgender men and women.

Most compelling is the Legislature’s change to the statute’s terminology, surely meaningfully, replaced the phrase “opposite sex” with “different gender.” Given that “sex” and “gender identity” are distinct protected classes under Chapter 151B, one might infer that the Legislature’s changed the language from “sex” to “gender” to open the door for the statute’s application to gender identity. Also surely meaningful is the decision to change “opposite” to “different.” Retaining the word “opposite”—i.e. “opposite gender”—would have implied only two genders, one opposite the other; “different gender,” however, can accommodate a more expansive class.

But then again, the Legislature did not employ the phrase “gender identity” anywhere in the Act, despite years ago enshrining “gender identity” as a protected class and defined term. The Legislature is presumed to know how to reference its statutory definition of “gender identity,” and that phrase’s absence in the Equal Pay Act may also be meaningful.

Also potentially significant is that the Legislature’s “An Act To Establish Pay Equity” does not only rewrite the Equal Pay Act, but also establishes a “special commission” to analyze the pay disparity of every protected class of Chapter 151B—including gender identity—except for sex. This may suggest that the Legislature did not want this statute to regulate, without further study, pay disparity based on gender identity.

Conclusion

The Legislature’s new Equal Pay Act, while restoring clarity and force to a long-ineffectual remedy against pervasive wage disparity among men and women, is unfortunately uncertain in its application to employees of different gender identities. Particularly where statutory construction does not yield a unanimous interpretation, this important issue may remain unresolved until the Legislature amends the statute or the Attorney General issues regulations. Until then, it will remain an area of uncertainty to be worked out by litigants, attorneys, and the courts.