Skip Header to Content

GLAD

GLAD Logo GLAD Logo Skip Primary Navigation to Content

Policing, Prisons, & Criminal Justice | Discriminatory Treatment | Massachusetts

Massachusetts Discriminatory Treatment Q&A

Does Massachusetts have an anti-discrimination law protecting LGBT individuals from discrimination?

Yes. Since 1990, Massachusetts has prohibited discrimination based on sexual orientation in public and private employment, housing, public accommodations, credit, and services (see generally Mass. Gen. Laws, chap. 151B). Other areas of the law (e.g. education and insurance) also prohibit discrimination based on sexual orientation.

Recently, these laws have been extended to protect transgender people. In 2011, Governor Deval Patrick signed a historic executive order prohibiting discrimination based on gender identity and expression in state employment (Mass. Exec. Order. No. 526 (Feb. 17, 2011), MA Executive Order 526). In 2012, Massachusetts amended its anti-discrimination laws to prohibit discrimination based on gender identity in public and private employment, housing, credit, education, and services—but not public accommodations. Finally, in 2016, Massachusetts passed the long-awaited transgender public accommodations bill, protecting transgender people from discrimination in restaurants, libraries, hotels, malls, public transportation, and beyond (Mass. Gen. Laws, chap. 272, secs. 92A, 98). For further information about the bill, see GLAD’s MA Public Accommodations Q&A, at https://www.glad.org/current/post/ma-public-accommodations-q-a.

Do the laws also protect people perceived to be LGBT?

Yes. Massachusetts non-discrimination law defines “sexual orientation” as “having an orientation for or being identified as having an orientation for heterosexuality, bisexuality or homosexuality” (Mass. Gen. Laws, chap. 151B, sec. 3(6)). This language has been interpreted to include discrimination based on perception. For example, if a person is fired because they are perceived to be gay, they may invoke the protection of the anti-discrimination law regardless of their actual orientation.

Similarly, the law defines “gender identity” 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… (Mass. Gen. Laws, chap. 4, sec. 7(59) (emphasis added)).

I am often told by police to “move along” from public areas. Is that legal?

Not necessarily. If the area is public and not posted as having particular hours, you generally have a right to be there as long as you are engaged in lawful activity. Public places belong to everyone, and are also often places of public accommodation to which non-discrimination rules apply. Even if a police officer wants to deter crime, or suspects some kind of unlawful intent, they have no general right to request people to move from one place to another unless there is unlawful conduct (Commonwealth v. Carpenter, 325 Mass. 519, 521 (1950) (sauntering and loitering in public places is right of every person); Benefit v. City of Cambridge, 424 Mass. 918 (1997) (streets and other public areas are “quintessential public forums” for expression); Kent v. Dulles, 357 U.S. 116, 126 (1958)).

What are the general rules about interaction with police?

The presence of individuals who appear to be LGBT – whether because such individuals are displaying symbols such as a rainbow flag or pink triangle or for any other reason – should not trigger any special scrutiny by a police officer.

Police may, of course, approach a person, and make inquiries, but the officer can neither explicitly nor implicitly assert that the person must respond to their inquiries (Commonwealth v. Murdough, 428 Mass. 700 (1999)). Even if a person has been convicted of a past offense, or fails to respond, or responds in a way which does not satisfy the officer, that person cannot be arrested (Murdough, 428 Mass. at 703; Alegata v. Commonwealth, 353 Mass. 287, 300-01, 231 N.E.2d 201 (1967)).

If an officer has “reasonable suspicion” that a crime has been committed or is about to be committed, they may briefly detain an individual, or stop the person for purposes of investigation (Murdough, 428 Mass. at 763, Terry v. Ohio, 392 U.S. 1, 16 (1968)). An arrest can only occur upon “probable cause” that a crime has been committed (Murdough, 428 Mass. at 703).

What can I do if I believe I have been improperly treated by the police?

Complaints may be made to any individual police department for matters concerning its officers. Call GLAD if you need to find out how to make a complaint to the local police.

Complaints to the Massachusetts State Police may be made via a Citizens Response Report, or form SP-340, which can be completed online and sent electronically (see http://www.mass.gov/eopss/agencies/msp/citizen-concerns.html for more information) or mailed to The Massachusetts State Police, Division of Standards and Training/Citizen Response Reports, 470 Worcester Road Framingham, MA  01702. An officer assigned to the Division of Standards and Training will contact you upon receipt of your report (“Citizens Response Reports,” Public Safety, http://www.mass.gov/eopss/agencies/msp/citizen-concerns.html).

Please let GLAD know whenever you make a complaint so that we can track the responsiveness of the various police departments.

In some cases, you may decide to pursue a lawsuit, either because of injuries, improper detainment, or for some other reason. These matters are highly specialized, and GLAD can make attorney referrals. People can also register serious complaints with the Attorney General’s Office, Civil Rights Division.