Legislative Memo: Gender Expression Non-Discrimination Act

June 2, 2011 —  Subject: Gender Expression Non-Discrimination Act (GENDA)
A.5039 / Gottfried
S.2873 / Duane


New York’s civil rights laws are intended to promote the fundamental values that underlie our political system — including personal liberty, tolerance of diverse backgrounds and points of view, and respect for privacy. And above all else, civil rights laws should serve to protect members of groups marginalized in our society. That protection should be available to individuals whether the defining factors of the group are race, ethnicity, national origin, disability, religious or political beliefs, sexual orientation, or gender identity or expression.

However, transgender and gender non-conforming individuals are currently denied the basic legal protections that are afforded other marginalized groups because gender identity and expression are not recognized as protected statuses under New York State’s civil rights laws.

This legislation would add gender identity and gender expression to those statuses afforded protection under the state’s civil rights laws. The NYCLU strongly supports this measure.

When the Sexual Orientation Non-Discrimination Act (SONDA) was finally passed in 2002, it failed to include protections against discrimination based on gender identity and expression. This oversight has left transgender and gender non-conforming New Yorkers vulnerable to harm – and without adequate legal recourse when victimized by discrimination. The persistence of such discrimination is greatly underappreciated; and even among law makers there is ignorance of the lack of explicit legal protections against such harm. A recent survey shows that more than two thirds of New Yorkers (71%) mistakenly believe it is already illegal in New York to fire someone because he/she is transgender.

In fact, transgender individuals regularly suffer discrimination that creates barriers to the most basic of services, including housing, employment and medical care. These barriers create a traumatic daily existence that is reflected in elevated levels of homelessness and suicide among transgender individuals. Sadly, transgender youth are equally at risk. Surveys show that transgender and gender non-conforming students report feeling unsafe in school in much greater numbers than other students and data indicate that transgender teens attempt suicide at alarming rates.

As discrimination against transgender and gender non-conforming individuals persists, the need for explicit legal protection is imperative. It has been argued that discrimination based on gender identity and expression is prohibited under a broad interpretation of existing federal and state laws – and the courts have ruled favorably in some cases. Indeed, Title VII already prohibits some forms of sex-stereotyping against gender non-conforming individuals. However, these prohibitions are repeatedly challenged by those facing discrimination claims, and the courts have not been clear or consistent regarding the scope of anti-discrimination protections as regards transgender and gender non-conforming individuals. The residents of New York State should not have to rely on a gamble in the courts as their only recourse in the face of discrimination. For this reason, New York State law must be clear that discrimination based on gender identity and expression is unlawful.

Further, the expansion of state non-discrimination laws to include gender identity and expression is neither radical nor novel. Thirteen states and the District of Columbia have already acted to protect their transgender and gender non-conforming residents. Closer to home, seven New York cities and counties have done the same, and in 2009, Governor David Paterson issued an executive order to prohibit New York State agencies from discriminating against individuals on the basis of gender expression and gender identity. But the legislature has failed to pass explicit statewide protections. As a result, almost half of all New Yorkers (47%) live in areas where discrimination on the basis of gender identity and expression is not clearly prohibited by law. While localities should be applauded for adopting local civil rights laws that more protective than state law, it is the responsibility of the state legislature to ensure the safety and fair treatment of all New Yorkers – of whom 78 percent would support statutory protections against discrimination based upon gender identity and gender expression.

Equal opportunity to fulfill one’s potential is a bedrock principle articulated in the U.S. Constitution; this principle is embraced as a core value of the American way of life. And yet transgender and gender non-conforming individuals have not been guaranteed this opportunity; their continued struggle in the absence of clear, enforceable legal protections is a betrayal of the promise of equality upon which this country was built, and its civil rights laws were written.

The NYCLU fully supports adding gender expression and gender identity to the list of protected classes in New York’s civil rights laws.

Concerns about penalty enhancements for bias crimes

The proposed legislation also provides for enhancements to a criminal sentence that may be imposed when a bias crime is motivated by animus based upon an individual’s gender identity or gender expression.

While the NYCLU unequivocally supports those provisions of the bill that establish civil rights protections based upon gender identity and expression, the organization’s support for the penalty enhancement provisions is not without qualification. In commenting on proposed bias crime legislation pending in the year 2000, the NYCLU observed that a policy of enhanced criminal sanctions is flawed absent affirmative measures that address the underlying causes that drive people to engage in bias-based violence.

Imprisonment is a limited and often counterproductive means of addressing social disorder and crime. For this reason the NYCLU proposed a comprehensive prevention model that would include educational programs – starting with anti-bullying measures in schools – that debunk stereotypes and promote respect and tolerance for difference; community-based anti-violence programs; a right to seek civil damages for harms caused by bias-motivated crime; and the creation of a New York State anti-bias resource center staffed by professionals who could provide assistance with conflict resolution and mediation, as well as legal matters.

There is an additional concern to which the law makers should give consideration: The United States is the world’s most aggressive warden, with more of its citizens behind bars than any other country. This population is disproportionately black and Latino. We have witnessed a “generation-long growth of imprisonment” that is due in large part to longer prison sentences for felony convictions, and New York has participated aggressively in this race to incarcerate.

It is incumbent upon law makers to analyze the manner in which the state has enforced its bias-crime statute, since its adoption in 2000, and to ensure that the law is not being used to prosecute disproportionately, or without legal justification, those individuals the state intended to protect by adopting penalty enhancements for bias crimes.

Notwithstanding these concerns, we urge the legislature to pass this legislation. There is no justification for further delay in providing transgender and gender non-conforming New Yorkers the basic legal protections GENDA will afford. We urge the Senate to follow the Assembly’s lead by passing S.2406 immediately.

1. Assembly Bill 6584-A/Senate Bill 3753-A, Section 3 - “The term ‘gender identity or expression’ means having or being perceived as having a gender identity, self-image, appearance, behavior or expression whether or not that gender identity, self-image, appearance, behavior or expression is different from that traditionally associated with the sex assigned to that person at birth.”
2. Transgender People and the Law – Frequently Asked Questions, ACLU Lesbian, Gay, Bisexual, Transgender and AIDS Project, http://www.aclu.org/lgbt/transgender/kyr_transgender.html. “Transgender is frequently used to describe a broad range of identities and experiences that fall outside of the traditional understanding of gender. Therefore, in addition to those people who wish to transition from one gender to another or have done so (who are often described by the clinical term “transsexual”), transgender often is meant to encompass a larger community that includes, for example, cross-dressers and intersex individuals. Some transgender people prefer to describe themselves as gender variant or gender nonconforming.”
3. The Global Strategy Group was commissioned by the Empire State Pride Agenda to conduct a statewide survey regarding transgender issues and the Gender Non-Discrimination Act in March 2008. Full survey results can be found at http://www.prideagenda.org/tabid/304/default.aspx?c=346.
4. Ray, Nicholas, Lesbian, Gay, Bisexual and Transgender Youth: An Epidemic in Homelessness, National Gay and Lesbian Task Force Policy Institute, 2006.
5. Bockting. Walter and Eric Avery, Transgender Health and HIV Prevention, Haworth Press, 2005. Because of limitations in survey instruments and personal information forms there is a paucity of data on transgender individuals.
6. Rankin, Susan R., Campus Climate for Gay, Lesbian, Bisexual and Transgender People: A National Perspective, National Gay and Lesbian Task Force, Policy Institute, 2003 and The Gay, Lesbian and Straight Education Network, 2005 National School Climate Survey: The Experiences of Lesbian, Gay, Bisexual and Transgender Youth in Our Nation’s Schools, 2005.
7. Blumenfeld, Warren J. and Laurie Lindop, “Gay, Lesbian, Bisexual, Transgender Youth Suicide,” reprinted on outProud, http://www.outproud.org/article_suicide.html and “Transgender Experiences: The Third Way,” Transgender/Transsexual Policy Group, Queens University Human Rights Office, http://www.queensu.ca/humanrights/tgts/tgts_experiences.htm.
8. See Price Waterhouse v. Hopkins, 490 U.S. 228 (1989); Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004); McGrath v. Toys “R” Us, Inc., 356 F.3d 246 (2d Cir. 2004).
9. For example, see Schroer v. Library of Congress, 424 F. Supp. 2d 203 (D.D.C. 2006). In this case, the ACLU represents a decorated officer in the U.S. Army, Retired Colonel Schroer, in her suit against the Library of Congress for discrimination in employment because she is transgender. The defendant has repeatedly sought to dismiss the case based on the argument that transgender individuals are not a protected class under Title VII. While the government’s multiple attempts to dismiss the case were ultimately unsuccessful, the experience was costly both in terms of litigation fees ad time for the plaintiff whose career was sidetracked by the discriminatory act. Schroer v. Billington, 577 F. Supp. 2d 293 (D.D.C. 2008). Explicit protections under the law would definitively secure the rights of transgender individuals in the employment, housing, public accommodations, and credit arenas.
10. “Jurisdictions with Explicitly Transgender-Inclusive Nondiscrimination Laws”, National Gay and Lesbian Task Force, July 2007, http://www.thetaskforce.org/all_jurisdictions. Minnesota, Rhode Island, New Mexico, California, Illinois, Maine, Hawaii, New Jersey, Washington, Oregon, Vermont, and Colorado.
11. Ibid. Albany, Buffalo, Ithaca, New York, Rochester, Suffolk County and Tompkins County.
12. Exec. Order No. 33 (Dec. 16, 2009).
13. Empire State Pride Agenda, http://www.prideagenda.org/IssuesExplained/Transgender/tabid/77/Default.....
14. Global Strategy Group survey, March 2008, http://www.prideagenda.org/tabid/304/default.aspx?c=346.
15. The NYCLU’s legislative memorandum on the “hate crime” legislation introduced, and enacted, in 2000 can be found at: http://www.nyclu.org/content/legislative-memo-strengthening-civil-rights....
16. James Austin, et al., “Unlocking America, Why and How to Reduce America’s Prison Population” JFA Institute, November 2007: 1.
17. Austin et al., 1.
18. New York sent 7,959 individuals to prison in 1980. Nearly three times as many were sent to prison in 1990. And in no year since then has the number of people sent to prison been less than double the number reported in 1980. At the end of 2009, New York held 58,378 prisoners, and while this figure represents a slight decline from previous years, it is significantly larger than the state’s prison population in 1970 (12,579) and even 1985 (34,605). Peter Wagner, “Importing Constituents: Prisoners and Political Clout in New York,” Prison Policy Initiative, April 2002, http://www.prisonpolicy.org/importing/importing.html.