Legislative Memo: In Support of the Gender Expression Non-Discrimination Act

May 20, 2015

S.0061A (Squadron) / A.04558A (Gottfried)

Position: SUPPORT

Transgender and gender non-conforming New Yorkers face pervasive and brutal discrimination solely because of who they are and how they express their gender. The Gender Expression Non-Discrimination Act (GENDA) provides important legal protections for transgender and gender non-conforming New Yorkers by amending state law to add gender identity and gender expression to the list of protected classes under the state’s civil rights laws.¹ The New York Civil Liberties Union strongly supports this measure.

New York’s civil rights laws are intended to promote the fundamental values that underlie our political system and, above all else, 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 and expression.

However, transgender and gender non-conforming individuals are currently denied basic legal protections that are afforded other marginalized groups because gender identity and expression are not recognized as protected characteristics under New York State’s civil rights laws.¹

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. One survey found that more than two-thirds of New Yorkers (71%) mistakenly believe it is already illegal in New York to fire an employee because that person is transgender.²

This lack of protection under New York State law results in unchecked discrimination against transgender and gender non-conforming individuals and creates barriers to the most basic of services, including housing, employment and medical care.³ These barriers create a traumatic daily existence that is reflected in elevated levels of homelessness and suicide among transgender individuals.⁴

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.⁵

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, while Title VII already prohibits some forms of sex-stereotyping against gender non-conforming individuals, courts have not been clear or consistent regarding the scope of anti-discrimination protections as regards transgender and gender non-conforming individuals.⁶ 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; 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. In fact, states and locales across the country and in New York already provide these protections. Eighteen states and Washington D.C. have acted to protect their transgender and gender non-conforming residents.⁷ Closer to home, eleven New York cities and counties have done the same,⁸ 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.⁹

However, the legislature has failed to pass explicit statewide protections. As a result, approximately four out of ten New Yorkers live in areas where discrimination on the basis of gender identity and expression is not clearly prohibited by law.¹⁰ While localities should be applauded for adopting civil rights laws more protective than state law, it is the responsibility of the state legislature to ensure the safety and fair treatment of all New Yorkers. This is not only the right thing to do – 78 percent of New Yorkers support enacting statutory protections against discrimination based upon gender identity and gender expression.¹¹

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.

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.¹²

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.¹³

Imprisonment is a limited and often counterproductive means of addressing social disorder and crime.¹⁴ 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 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.¹⁵ This population is disproportionately black and Latino.¹⁶ 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.¹⁷

It is incumbent upon law makers to analyze the manner in which the state has enforced its bias-crime statute since 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. The NYCLU urges the state legislature to pass this measure.

1 Gender Expression Non-Discrimination Act, S.0061A/A.04558A, 237th Leg., Reg. Sess. (N.Y. 2015) (amending the executive law, the civil rights law and the education law, in relation to prohibiting discrimination based on gender identity or expression; amending the penal law and the criminal procedure law, in relation to including offenses regarding gender identity or expression within the list of offenses subject to treatment as hate crimes; defining the term “gender identity or expression” as “a person’s actual or perceived gender-related identity, appearance, behavior, expression, or other gender-related characteristic regardless of the sex assigned to that person at birth, including, but not limited to, the status of being transgender.”).

2 Global Strategy Group, GENDA Survey at 2.The Empire State Pride Agenda commissioned a statewide survey of voters regarding transgender issues and the Gender Expression Non-Discrimination Act in February 2008. Full survey results can be found at http://www.theinterface.org/media/pdf/GENDA_Survey-Press_Topline_final.pdf.

3 See generally Jaime Grant, et al., Injustice at Every Turn: A Report of the National Transgender Discrimination Survey (2011) available at http://www.thetaskforce.org/downloads/reports/reports/ntds_full.pdf.

4 Id. at 2, 4, 82, 106.

5 Id. at 35, 45, 72, 82-83; see also Arnold Grossman & Anthony D’Augelli, Transgender Youth and Life-Threatening Behaviors, 37 Suicide & Life-Threatening Behav. 527 (2007), available at http://transformingfamily.org/pdfs/Transgender%20Youth%20and%20Life%20Th….

6 A few transgender employees have sought relief for discrimination at work claiming illegal sex discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000-e et seq. (amended 2009), following a landmark Supreme Court decision holding a company liable for failing to promote a female employee because senior staff members criticized her for not conforming to stereotypes of how a woman should look or behave. PriceWaterhouse v. Hopkins, 490 U.S. 228 (1989). More recently, some transgender employees have succeeded in showing they suffered sex discrimination prohibited by Title VII. See, e.g., Glenn v. Brumby, 663 F.3d 1312, 1317 (11th Cir. 2011) (holding that “discrimination against a transgender individual because of her gender-nonconformity is sex discrimination, whether it’s described as being on the basis of sex or gender,” and describing agreement of 1st, 6th and 9th Circuits). However, in some cases, federal courts have held that Title VII’s sex discrimination protections do not apply to transgender people. The Equal Employment Opportunity Commission (EEOC) has also held that transgender people are protected under Title VII’s prohibitions against discrimination on the basis of sex in the area of employment. See Mia Macy v. Holder, Agency No. ATF-2011-00751, available at http://www.eeoc.gov/decisions/0120120821%20Macy%20v%20DOJ%20ATF.txt. There is, however, no guarantee that an EEOC decision will be followed by New York courts. See, e.g., Espinoza v. Farah Mfg. Co. Inc., 414 U.S. 86, 94 (1973) (refusing to follow an EEOC interpretation of a statute, holding that the interpretation did not align with congressional intent and therefore did not need to be deferred to). Regardless of how federal courts and the EEOC may interpret Title VII, state laws barring discrimination based on gender identity and expression are critical in providing clear redress for employment discrimination.

7 California, Colorado, Connecticut, Delaware, the District of Columbia, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington have passed laws that prohibit discrimination on the basis of gender identity and expression. Empire State Pride Agenda, Quick Facts: Answers to Common Questions – Gender Expression Non-Discrimination Act (2014), available at http://www.prideagenda.org/Issues-Explained/Transgender-Equality-and-Jus… (last visited April 21, 2015).

8 Id.; New York cities that have enacted local protections on the basis of gender identity and expression include Albany, Binghamton, Buffalo, Ithaca, New York City, Rochester, Syracuse, and New York counties include Albany, Westchester, Suffolk, and Tompkins.

9 Office of the New York State Governor, Executive Order No. 33 (Dec. 16, 2009)(in continued effect by order of Governor Andrew Cuomo, Executive Order No. 2 (Jan. 1, 2011), available at https://www.governor.ny.gov/executiveorder/2).

10 U.S. Census Bureau, State and County Quick Facts, available at http://quickfacts.census.gov/qfd/states/36000.html (last visited April 21, 2015) (2012 data shows that 11,876,436 New Yorkers live in areas with protections for transgender and gender non-conforming individuals; when compared to the total New York state population of 19,576,125, this leaves 7,699,689 New Yorkers, or 39% of the population, unprotected).

11 GENDA Survey, supra note 2, at 2 (reporting findings that 78% of New York voters support passage of such a law and only 13% oppose).

12 S.0061A/A.04558A, supra note 1.

13 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….

14 See, e.g., Marsha Weissman, Aspiring to the Impracticable: Alternatives to Incarceration in the Era of Mass Incarceration, 33 N.Y.U. Rev. L. & Soc. Change 235 (2009); Craig Haney, The Psychological Impact of Incarceration: Implications for Post-Prison Adjustment, U.S. Dep’t of Health & Human Serv. & Urban Institute, From Prison to Home: The Effect of Incarceration and Reentry on Children, Families and Communities (2002), available at http://aspe.hhs.gov/hsp/prison2home02/haney.pdf; Dina Rose and Todd Clear, Incarceration, Social Capital and Crime: Implications for Social Disorganization Theory, 36 Criminology 441 (1998, rev. 2006).

15 International Centre for Prison Studies (“ICPS”), World Prison Population List, 10th ed. (Oct. 2013), available at http://www.prisonstudies.org/sites/prisonstudies.org/files/resources/dow…. This statistic is true over more than a decade of data, as well as in terms of number of incarcerated persons both with and without regard to proportion of national population. For data comparison, see ICPS, World Prison Brief, available at http://www.prisonstudies.org/highest-to-lowest.

16 Paul Guerino, et al., U.S. Dep’t of Justice, Bureau of Justice Statistics, Prisoners in 2010 (Dec. 2011, rev. Feb. 2012) at 7, 27, available at http://www.bjs.gov/content/pub/pdf/p10.pdf.

17 James Austin, et al., Unlocking America: Why and How to Reduce America’s Prison Population (Nov. 2007) at 1, available at http://www.jfa-associates.com/publications/srs/UnlockingAmerica.pdf.