How to Avoid Being Sued for Transgender Discrimination in Massachusetts: A Landlord’s Guide to Gender Identity

Conchita Wurst is a drag character created by a man who does not identify as transgender. Conchita Wurst at the Eurovision Song Contest 2014 in Copenhagen. By Albin Olsson licensed CC BY-SA 3.0.

What It Means to be Transgender

Your sex is determined at conception, when a male sperm cell gives either an “X” or a “Y” DNA strand to the female egg cell, which always gives an “X”. If you get “XY” you will be considered biologically male, and if you get “XX” you will be considered biologically female.

Fast forward nine months and a few, or many, years. Your sex was assigned at birth, and chances are, you have been raised as the gender that matches your sex. However, some of us will have developed serious psychological difficulty with the gender we were given. Those of us in this boat are called “transgender.”

Although science understands what makes us biologically male or female, it has little insight to offer on our identity. Why does one person become a tenant and another become a landlord? Why does one person emote male stereotypes while another emotes female, and a third emotes both? Why do some of us feel we cannot fit into stereotypical conceptions of either gender at all?

“Transgender” is a broad term that encompasses all of the people confronting these as-yet unanswered questions. You can be born male and feel female, born female and feel male, or born either and feel both or neither. Non-binary people, who do not feel as though they fully identify with either sex, fall under the transgender umbrella.

This contrasts with the majority of human experience, which we call “cisgender” (SISS-gender). Cisgender people identify with the gender they were assigned at birth.

Estimates of transgender frequency change, but as of 2022, transgender and non-binary people make up 0.5% to 1.6% of the total U.S. population.

Note that sexual orientation (to whom we are attracted) is totally different from sexual identity (male, female, non-binary, etc.).

Based on statistics about how many landlords there are in the state, it seems likely that 1 in 10 landlords will have a transgender person in one of their apartments. Since July 1, 2012, Massachusetts transgender housing applicants must receive the same treatment as cisgender applicants.

Caitlyn Jenner made headlines Summer 2015. Image by Mike Mozart licensed CC BY 2.0.

Official Forms of Identification May Include Non-Binary Gender Markers

For the last 2,500 years, southeast Asian cultures have identified transgender people as distinct from cisgender. In India, the term “hijra” is the officially recognized “third gender” for males who identify as female. Nepal, Pakistan, India and Bangladesh all recognize three genders on passports and official government documents.

In the United States, whether you can change your gender marker on official documents largely remains up to the state you reside in. Some states, including Massachusetts, allow non-binary people to select an "X" for their gender marker on state identification and/or birth certificates. As of 2022, the federal government allows individuals to select an "X" for their gender marker, instead of "male" or "female."

Real Examples You Should Be Aware Of

Pay attention to these examples now so you can remain businesslike during an apartment tour.

Caitlyn Jenner (Transgender, Male to Female)

Caitlyn Jenner won her Olympic gold medal in 1976 in men’s decathlon, but in the June 2015 issue of Vanity Fair, came out as transgender. It is considered inappropriate to refer to her by her former name (Bruce), or to use masculine pronouns to describe her. She’s a she.

It was a long road for Jenner to transition to the point where she had female anatomy. In her memoir she explained the surgical procedures she had. These were called “sex reassignment therapy.” She may also be on hormones.

It is considered extremely rude to ask someone if they had surgery or are on hormones. Ask them if they have enough to pay the security deposit.

Thomas Beatie (Transgender, Female to Male)

Beatie became internationally famous in 2007 when he became pregnant. He had received sex reassignment therapy five years prior, but because his wife could not conceive, chose to keep his female sex organs and carry their children. (They used donor sperm.) Beatie had begun identifying as male starting at age 10. Beatie and his wife later divorced.

As a landlord, it is not your job to identify which marriages will last and which will fail. Offer them the same lease or month-to-month terms you offer everyone else, and if you have it in the fridge, offer the father pickles and ice cream.

Miley Cyrus (Gender Fluid)

Cyrus is an American singer, songwriter, and actress. She identifies as “gender fluid,” which means sometimes she identifies as female and sometimes as male.

Some gender fluid people use alternating pronouns, "they/them" pronouns, or something else. You can always ask someone their preferred pronouns.

Thomas Neuwirth aka Conchita Wurst (Drag Performer)

Thomas Neuwirth does not identify as transgender, but he spends a considerable portion of his time in his professional outfit, which is drag. He refers to his professional character as Conchita Wurst using female pronouns.

She won the Eurovision music contest in 2014 but he is the one who does the grocery shopping. Count them as one person for the sake of sanitary code compliance.

Laila Villanueva and fiancée Logan Beck Ireland in 2015, both transgender in opposite directions.  By Dominic Holden BuzzFeed

Logan Beck Ireland (Transgender, Female to Male)

Senior Airman Logan Beck Ireland of the United States Air Force and his then-fiancée Laila Villanueva were representative of most transgender people in their New York Times interview on serving in the military: You couldn’t even tell, and it doesn’t even matter.

This variety of transgender representation is the easiest to understand because individuals remain “binary,” that is, they act and appear fully male or female. And because they received medical attention early in life, their transgender status is impossible to see. Other transgender people may not have had access to gender-affirming medical care, or may have chosen not to undergo hormone treatment or surgery. They are just as valid as those who appear to more easily match the gender they identify as.

Ireland made headlines for being forced to wear a woman’s dress uniform for a ceremony, because his birth certificate still listed him as female. As a landlord considering Logan's rental application, you would thank him for his service and not ask him to put on a dress.

A transgender pronoun card distributed by the University of Wisconsin Milwaukee. Source: https://uwm.edu/lgbtrc/support/gender-pronouns/

Hypothetical Examples of Non-Binary People

Some of us purposefully combine characteristics of both sexes. Those of us who do this call ourselves queer or non-binary. Here are some hypotheticals that you should treat as normal if you find yourself meeting someone like this.

A tenant who appears to be fully male and acts fully male arrives for their tour wearing a sun dress. Or, a tenant who appears to be fully female but is presenting very masculine to you arrives for their tour. Perhaps two tenants who appear fully androgynous arrive for their tour.

In all cases, the person may be in transition, may be unable to obtain the effect they desire, or may in fact desire a blend of attributes. But in every case, if you are not sure, use neutral pronouns (or no pronouns, how often do you refer to someone as "he" or "she" when you are talking directly to them?), or ask what they prefer. Try not to inquire about household roles, either, it’s not your business.

Increased Usage of They/Them and Neo-Pronouns

Many languages, including English, have three genders for certain types of words. In English, we see this with “his, hers, and theirs.” “His” applies to males, “hers” to females, and “theirs” is considered gender-neutral. Some transgender advocates may choose a fourth gender-fluid form, “zirs.” Still others may have an entirely new set of pronouns.

If a tenant wants you to use one of these neo-pronouns, you will hear something like what’s in the graphic accompanying this article. “She/he” becomes “Ze”, “Him/Her” becomes “Zir”, and “His/Hers” becomes “Zirs”. Other varieties of “he/him/his” exist, including “xe/xem/xyr” and “ve/ver/vis”.

If you are unsure how to address someone, you can always ask what they prefer. Questions in good faith will likely be met with sincere answers.

If You Mess Up Someone's Name, Gender or Pronouns

It happens to the best of us. You want to be respectful, but your transgender tenant goes by "Randy" and has an ID that has their birth name, "Rachel," because they have not legally changed their name yet. You've been filling out paperwork all day and have "Rachel" on your mind, and oops! You greet Randy with a hearty "Hi, Rachel!"

If you call someone the wrong name, or use the wrong pronoun or gender marker, simply apologize. Don't fall all over yourself and beat yourself up over it in front of the person. That puts the responsibility on them to make you feel better about your error. Instead, correct yourself quickly and move on. The more you use the correct name or terms for someone, the easier it will be for you.

Legal Information

The Massachusetts Commission Against Discrimination advises that it will rarely be appropriate to request proof of someone’s gender identity.

The guidance goes on to state further that claiming a gender identity for an improper purpose will be unlawful. This means you can still check CORI, for instance, and all other backgrounds. “I transitioned” is not a valid excuse not to investigate someone’s past.

When screening for criminal history, help your transgender applicant to complete just one CORI authorization with annotation. You must not impose unreasonable paperwork burdens. Two CORI authorizations would be debatable, especially if you didn’t offer any help in filling them out.

If your applicant transitioned before 18, accept their current name and sex on the CORI authorization. Run the report for that name and sex only. If they transitioned after 18, accept their current name and sex and make a note of their former name and sex on the same form. Run the CORI report twice, once for before and once for after their transition. You might say you don’t want to pay twice for a report, but $50 paid to CORI beats $30,000 paid to the MCAD or to the attorney general.

Best Advice for Massachusetts Landlords

Landlords should also update their discrimination policies to state that you will not discriminate on the basis of gender identity.

You should always use an objective (read: point based) scoring system to score each individual applicant. Save these documents forever. You can defend yourself against a discrimination suit if you can show that there was a business reason you declined a transgender person’s application.

Trigger warning: Never use the word “tranny,” which is considered deeply offensive. Do not laugh, stare, or say things like, “Oh, I could hardly tell!” If someone informs you they are transgender, say simply, “Thank you for letting me know, that is no problem.” And offer them the same perks, discounts or services you offered anyone else with their qualifications.

If a transgender person has all the economic qualifications you need, don’t be afraid to rent to them. They are tough and can take care of themselves. If they perceive that you are treating them no differently than any other human being, they might become long-term tenants, rather than re-enter the apartment market any time soon. This will reduce your vacancy and help your business bottom line. You will be ahead of the competition if you are welcoming to good people with bum raps.

FAQ: My renter’s ID doesn’t match their name/their appearance. What do I do?

There are several reasons why someone’s official identification may not match the name they’re using or their appearance. Perhaps they’ve only just begun their transition, so they have started using a different name socially, but have not yet legally changed it. Legally changing your name as an adult can be expensive if you are not doing it because of divorce or marriage. Or, they may be medically transitioning (such as taking gender-affirming hormones) but have not renewed their driver’s license since they started the process.

As a landlord, all you’re really trying to do here is prove that the person in front of you matches the person they say they are and that you aren’t dealing with a case of stolen identity (which is no more likely to happen with a transgender person than a cisgender person). You can explain that you’re happy to use their chosen name and pronouns, but for legal reasons, the lease and other associated paperwork must have their legal name on it. This is the same rule banks and credit card companies follow, so it won’t be an unfamiliar concept. Run your background check and verify their social security number, just like you would for anyone else, using all names they may have gone by.

If the person sitting before you looks entirely different than their ID, look for other ways to confirm they are who they say they are. If Randy Renter looks very masculine, but their ID says Rachel Renter and has a more androgynous or feminine photo, and you really can’t tell that they’re the same person, try using sites like Linked In or other social media to verify their identity. Randy is probably using their preferred name on those sites as well.

It may also be helpful to remember that, no matter how thrown off you feel by a non-matching ID or someone presenting differently than expected, this is something that your potential tenant deals with regularly. They may even come prepared with alternate identifying documents (a school ID, a screenshot of their social media, something from work with their preferred name, etc.).