In 2023 Minnesota Pulled Gender Identity Out of the Sexual-Orientation Definition and Made It Its Own Protected Class

One section of one article rewrote two definitions

Minnesota’s current answer to the gender-identity question is not a court decision. It is two sections of a 2023 omnibus act, and reading them against the text they replaced is the fastest way to understand what the law now does.

Laws 2023, ch. 52, art. 19, § 47, amended Minn. Stat. § 363A.03, subd. 44. Everything in the old definition was struck. The subdivision had read:

“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. “Sexual orientation” does not include a physical or sexual attachment to children by an adult.

The replacement, which is the text in force:

“Sexual orientation” means to whom someone is, or is perceived of as being, emotionally, physically, or sexually attracted to based on sex or gender identity. A person may be attracted to men, women, both, neither, or to people who are genderqueer, androgynous, or have other gender identities.

Section 48 of the same article then added a definition that had never existed, at Minn. Stat. § 363A.03, subd. 50:

“Gender identity” means a person’s inherent sense of being a man, woman, both, or neither. A person’s gender identity may or may not correspond to their assigned sex at birth or to their primary or secondary sex characteristics. A person’s gender identity is not necessarily visible to others.

Read the two changes together and the structural move is plain. For decades Minnesota reached gender identity, to whatever extent it reached it, through a clause buried inside the definition of “sexual orientation” — “having or being perceived as having a self-image or identity not traditionally associated with one’s biological maleness or femaleness.” That clause is gone. Gender identity is now a term of its own, with its own definition, and the new sexual-orientation definition refers to gender identity rather than absorbing it.

And the act put the new term into the operative provisions

A definition does nothing by itself. Sections 52 through 55 of the same article inserted the words “gender identity,” into the list of protected characteristics in each of the four subdivisions of Minn. Stat. § 363A.08 that carries one: subdivision 1 (labor organizations), subdivision 2 (employers), subdivision 3 (employment agencies), and subdivision 4 (pre-employment inquiries). Section 46 made the matching insertion in the definition of “local commission,” § 363A.03, subd. 23, and § 56 of the same article created subdivision 8, the pay-history prohibition, which lists gender identity in its paragraph (d).

Subdivision 2 now reads, in relevant part, that it is an unfair employment practice for an employer, “because of race, color, creed, religion, national origin, sex, gender identity, marital status, status with regard to public assistance, familial status, membership or activity in a local commission, disability, sexual orientation, or age,” to refuse to hire, to discharge, or to discriminate in the terms of employment. Fourteen grounds; gender identity is the seventh.

Minn. Stat. § 363A.15, the reprisal provision, carries gender identity too — in its association clause, which makes it an unfair discriminatory practice to retaliate against a person because that person “associated with a person or group of persons who are disabled or who are of different race, color, creed, religion, gender identity, sexual orientation, or national origin.”

When it took effect. Sections 47, 48, and 52 through 55 carry no effective-date clause of their own. The only “EFFECTIVE DATE” line in that run of the article sits inside § 56 and begins “This section is effective January 1, 2024” (with a later date for employment covered by a collective bargaining agreement) — it belongs to the pay-history subdivision and to nothing else. So the default in Minn. Stat. § 645.02 governs, and which default depends on the act. Chapter 52 is an act having appropriation items: its title recites that it is “appropriating money for judiciary, Guardian ad Litem Board, Uniform Laws Commission, Board on Judicial Standards, human rights, sentencing guidelines, public safety,” and more, and its article 1 is an appropriations article. Section 645.02’s second paragraph therefore applies:

An appropriation act or an act having appropriation items enacted finally at any session of the legislature takes effect at the beginning of the first day of July next following its final enactment, unless a different date is specified in the act.

The governor signed chapter 52 on May 19, 2023. The first day of July next following was July 1, 2023.

What the old clause was doing, and the case that read it

Goins v. West Group, 635 N.W.2d 717 (Minn. 2001), is the Minnesota Supreme Court’s one sustained treatment of the struck clause, and it is the reason the 2023 amendment matters more than a tidy-up of statutory drafting would.

The employee in Goins had been designated male at birth, had presented publicly as female since 1995, and had obtained a Texas court order granting a name change and a gender change. Her employer enforced a policy of restroom use according to biological gender and directed her to use single-occupancy restrooms on another floor or in another building. She sued under the Human Rights Act on a sexual-orientation theory.

The court quoted the provision she relied on, at 722: “The definition of ‘sexual orientation’ includes ‘having or being perceived as having a self-image or identity not traditionally associated with one’s biological maleness or femaleness.’ Minn.Stat. § 363.01, subd. 41a (2000).” It accepted that she was a member of the protected class as the statute then defined it: “Goins alleges that she has such a self-image and West does not contend that she is not a member of the class protected by this statutory provision. Accordingly, Goins has successfully made out the first element of her prima facie case.” Id. at 724.

And then it held against her on the scope of the prohibition, at 723:

We believe, as does the Department of Human Rights, that the MHRA neither requires nor prohibits restroom designation according to self-image of gender or according to biological gender. … Bearing in mind that the obligation of the judiciary in construing legislation is to give meaning to words accorded by common experience and understanding, to go beyond the parameters of a legislative enactment would amount to an intrusion upon the policy-making function of the legislature. Accordingly, absent more express guidance from the legislature, we conclude that an employer’s designation of employee restroom use based on biological gender is not sexual orientation discrimination in violation of the MHRA.

The court added a footnote limiting the reach of what it had just said, at 723 n.2:

Nonetheless, in concluding that the MHRA does not cover workplace restroom designation and use according to biological gender or according to the employee’s self-image of gender, we by no means imply that workplace restrooms are, in other respects, beyond the coverage of the Act. … While the MHRA does not go so far as to protect Goins’ choice of restroom use, it does protect her right to be provided an adequate and sanitary restroom.

Three things are true about Goins at the same time, and a description that drops any of them is misleading.

It construed statutory text that no longer exists — the self-image clause it quoted was struck in 2023. It conditioned its conclusion on legislative silence, in the words “absent more express guidance from the legislature.” And the legislature has since spoken, though on the definitional question rather than on restrooms: it created a standalone gender-identity definition and inserted gender identity into the operative prohibition, and it did not add any provision about restroom, locker room, or facility designation. The employment prohibition it sits in does reach “conditions, facilities, or privileges of employment,” § 363A.08, subd. 2(3) — a phrase Goins itself said “is hardly open to debate” covers the use of employee restrooms, 635 N.W.2d at 724 n.4.

This page cites no Minnesota appellate decision construing § 363A.03, subd. 50. That is not a statement that none exists. The case-law search that would support such a statement was not run for this page, and the manifest records why. What the page does say is that the text Goins construed is not the text now in force.

Bostock is a Title VII case, and it says so repeatedly

The federal decision people reach for is Bostock v. Clayton County, 140 S. Ct. 1731 (2020), and its holding is narrower than its reputation. At 1741:

The statute’s message for our cases is equally simple and momentous: An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.

And the disposition, at 1754: “An employer who fires an individual merely for being gay or transgender defies the law.”

The Court then set out, in one paragraph, everything it was not deciding. At 1753:

The employers worry that our decision will sweep beyond Title VII to other federal or state laws that prohibit sex discrimination. And, under Title VII itself, they say sex-segregated bathrooms, locker rooms, and dress codes will prove unsustainable after our decision today. But none of these other laws are before us; we have not had the benefit of adversarial testing about the meaning of their terms, and we do not prejudge any such question today. Under Title VII, too, we do not purport to address bathrooms, locker rooms, or anything else of the kind. The only question before us is whether an employer who fires someone simply for being homosexual or transgender has discharged or otherwise discriminated against that individual “because of such individual’s sex.”

It reserved the religious-liberty questions on the next page, noting the express statutory exception for religious organizations in § 2000e-1(a), the First Amendment ministerial doctrine, and the Religious Freedom Restoration Act, which “might supersede Title VII’s commands in appropriate cases,” and concluding that “how these doctrines protecting religious liberty interact with Title VII are questions for future cases too.” Bostock, 140 S. Ct. at 1754.

Two practical consequences for a Minnesota reader. Bostock reaches an employer with fifteen or more employees, because that is Title VII’s definition; Minnesota’s statute reaches one with a single employee. And Bostock reached its result by construing the word “sex” in a statute that does not name sexual orientation or gender identity — where Minnesota names both, separately, and defines both.

Four more grounds Title VII does not have

Title VII’s employer prohibition lists five characteristics. 42 U.S.C. § 2000e-2(a)(1) makes it unlawful “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” Minnesota’s list is fourteen. Four of the extras are rarely discussed and each is defined in the statute.

Marital status. § 363A.03, subd. 24: “‘Marital status’ means whether a person is single, married, remarried, divorced, separated, or a surviving spouse and, in employment cases, includes protection against discrimination on the basis of the identity, situation, actions, or beliefs of a spouse or former spouse.” The clause after the comma is the operative one in most employment disputes, and it is unusual: the protection reaches decisions made because of what someone else did or believes.

Familial status. § 363A.03, subd. 18, as amended by Laws 2024, ch. 105, § 4, now covers two distinct things. The first is the condition of one or more minors “having legal status or custody” with a parent, guardian, or designee — language that replaced “being domiciled.” The second is new: “Familial status also means residing with and caring for one or more individuals who lack the ability to meet essential requirements for physical health, safety, or self-care because the individual or individuals are unable to receive and evaluate information or make or communicate decisions.” The subdivision closes with a clause that predates the amendment: “The protections afforded against discrimination on the basis of family status apply to any person who is pregnant or is in the process of securing legal custody of an individual who has not attained the age of majority.” Chapter 105 carries no effective-date clause and makes no appropriation, so under § 645.02 the amendment took effect August 1, 2024 — the governor signed it May 15, 2024.

Status with regard to public assistance. § 363A.03, subd. 47: “‘Status with regard to public assistance’ means the condition of being a recipient of federal, state, or local assistance, including medical assistance, or of being a tenant receiving federal, state, or local subsidies, including rental assistance or rent supplements.”

Membership or activity in a local commission. This one has no definition, and it appears in only two places in the whole of § 363A.08: subdivision 2, the employer prohibition, and subdivision 8(d), the pay-history savings clause. It is absent from the lists in subdivisions 1, 3, and 4. “Local commission” is defined at § 363A.03, subd. 23, as an agency of a city, county, or group of counties “created pursuant to law, resolution of a county board, city charter, or municipal ordinance for the purpose of dealing with discrimination” on the listed bases.

Two more definitions in the same section widen grounds Title VII does share.

Race includes traits. § 363A.03, subd. 36a: “‘Race’ is inclusive of traits associated with race, including but not limited to hair texture and hair styles such as braids, locs, and twists.” That subdivision was added by Laws 2023, ch. 3, § 1, a one-section act whose title recites only “relating to human rights; adding a definition of race to the Minnesota Human Rights Act.” The act carries no effective-date clause and makes no appropriation; the governor signed it January 31, 2023, so under § 645.02 it took effect August 1, 2023.

Sex includes pregnancy. § 363A.03, subd. 42: “‘Sex’ includes, but is not limited to, pregnancy, childbirth, and disabilities related to pregnancy or childbirth.” The employment consequences of that, and the separate pregnancy-accommodation statute at Minn. Stat. § 181.939, are on pregnancy and parenting leave.

Currency

The Revisor currently publishes the 2025 edition of Minnesota Statutes. History lines were read on each section cited: § 363A.03 ends “2023 c 3 s 1; 2023 c 52 art 19 s 46-48; 2024 c 105 s 2-5”; § 363A.08 ends “1Sp2021 c 11 art 3 s 13; 2023 c 52 art 19 s 52-56”; § 363A.15 ends “2023 c 52 art 19 s 68.”

The Revisor’s table of Minnesota Statutes affected by session laws was queried one exact section at a time, and the Session column was read on every row rather than inferred from the year in the path. For § 363A.03 the table returns nine rows and the most recent is from the 2024 Regular Session — subdivision 3 repealed by ch. 105, § 20; subdivisions 12, 13, 18, and 29 amended by ch. 105, §§ 2, 3, 4, and 5; subdivision 23 amended and subdivision 44 amended by 2023 ch. 52, art. 19, §§ 46 and 47; subdivision 36a created by 2023 ch. 3, § 1; subdivision 50 created by 2023 ch. 52, art. 19, § 48. No 2025 or 2026 action is returned for § 363A.03. Section 363A.08 returns one 2026 action, to subdivision 4 (Laws 2026, ch. 88, art. 1, § 196), which strikes a cross-reference in paragraph (b) and does not touch the list of protected characteristics in paragraph (a) or in subdivision 2. Section 363A.15 returns one row, the 2023 amendment already in the History line.

Bostock was read from the Caselaw Access Project’s copy of volume 140 of the Supreme Court Reporter, with page pins assigned from the star pagination in that text, and the Court’s own slip opinion was retrieved from supremecourt.gov and read alongside it. The United States Reports citation is not used here: supremecourt.gov’s bound volumes end at volume 587, so the U.S. Reports pagination for this case was not retrievable from the Court’s own archive.

What this page does not do

It reads definitions and the acts that wrote them. It does not decide how any of them applies to a particular workplace policy, and on the one question readers most often bring to this subject — facility designation — it reports that the Minnesota Supreme Court answered it in 2001 under a definition that no longer exists, that the legislature rewrote the definitions in 2023 without addressing facilities, and that no decision reading the current text is cited here.

The prohibition these grounds sit in, and how a claim under it is proved, are on how a discrimination case is proven. Harassment on any of these grounds has been inside the statutory definition of “discriminate” since August 1, 2024 — the 2024 amendment. The one-year filing period is on the calendar page, what a court or an administrative law judge can order is on what the Human Rights Act can award, and the state-versus-federal comparison across every other subject is on Minnesota versus the federal floor.