Adding Gender Identity to SONDA

Push for transgender inclusion in gay rights bill builds, and alarms some

[NEW YORK, NY] - State Senator Tom Duane (D-West Side) is leading an all-out last- minute charge to add "gender identity and expression" to the Sexual Orientation Non-Discrimination Act (SONDA) that is scheduled for a vote on December 17.

He is supported in that effort by the new Senate Minority leader, David Paterson (D-Harlem), who joined Duane in meeting with LGBT activists both supportive and opposed to such a strategy, including the Empire State Pride Agenda?the lead lobbyists on the bill?which has insisted all along that transgender inclusion in SONDA would kill it.

"It's my mission to include language that protects people of transgender experience," Duane said. "The issue is not whether I am trying to stop SONDA, but whether we're going to pass a bill with inclusive language." He puts his chances of succeeding at 20-25 percent. Duane refused to say if he would vote for a non-inclusive SONDA, but said, "No matter what I do, I wouldn't stop SONDA. There is no chance that something will not pass on the 17th."

Duane also said that a conversation with Senate Majority Leader Joe Bruno led him to conclude that he has not closed the door to taking up a SONDA that covered people of transgendered experience.

"We're meeting with Bruno on this next week to follow up on Tom's conversation with him, but to pass a transgender-inclusive bill we would need an extraordinary confluence of circumstances?a true and wonderful miracle," said Matt Foreman, director of the Pride Agenda.

Foreman said that even if Bruno were to come around on transgender inclusion he can't imagine the Senate leader doing so unless the Assembly, currently not scheduled to come back to Albany this year, first came back into session to pass the more inclusive measure. He added that amendments, difficult under Senate rules, are easier to raise under Assembly rules, opening up the door for a poison pill in the form of a defense of marriage measure banning recognition of same- sex marriage.

"That creates a new and terrifying set of circumstances," Foreman said. "We would be playing with fire. I don't think that there is any disagreement that if SONDA went down this year, it would be anything less than a terrible defeat for the LGBT community. We would love to have transgender inclusion, but not at the expense of SONDA."

Paterson said that it was he and Assemblymember Roger Green who successfully argued in the Black and Puerto Rican Legislative Caucus not to move forward on a hate crimes bill years ago if it meant excluding the category of sexual orientation. It meant that it took 11 years to pass the legislation.

"I do not as a leader want to send a message that transgendered people should be left out," he said. "We all deeply want to pass SONDA, but that honest feeling is being manipulated to disenfranchise transgendered people." Paterson added that the legislature has a tendency not to go back and "fix" legislation that is incomplete the first time. The average time it takes for a jurisdiction with gay and lesbian protections to add gender identity is 13.8 years, though that gap is narrowing as more jurisdictions move to protect gender identity.

Jeff Soref, a former Pride Agenda board co-chair who has remained involved in the negotiations for its passage, said, "I don't think Tom's strategy is without risks."

He said that "nothing is predictable" when it comes to this bill, which had been promised to the community before, only to fail to be brought up for a vote by the Republican leadership in the Senate. And Soref worries that if Duane offers an amendment, Republicans could seek amendments??such as one banning same-sex marriage??that would kill the bill.

Duane said that bills are never amended on the floor in Albany and that he is trying to convince Bruno to allow the more inclusive version of SONDA to be considered instead.

Soref also worries that raising the gender identity issue on the 17th could create a "negative legislative history" that would undermine lawsuits?some already in progress?that assert that people of transgendered experience are already covered under existing state law. He said that representatives of the Pride Agenda, Housing Works, the Urban Justice Center, and the ACLU Lesbian and Gay Rights Project met with people in the civil rights division of the State Attorney General's office on November 21 to discuss prospects for a legal strategy.

Earlier this year, Andrew Celli of the AG's office said, "We think that this issue is ripe for litigation under the gender category and it would have a reasonable chance of success."

Housing Works, the AIDS advocacy group, has been running radio ads in Albany saying that SONDA is a progressive but incomplete bill. The ads congratulate Pataki and Bruno for supporting it, but urge them to amend it to include "gender identity."

"We have information that Bruno is feeling pressure to make the amendment happen," said Charles King, co-director of Housing Works.

And he is confident that if Bruno comes around, Assembly Speaker Sheldon Silver will make it happen in his house.

Pauline Park, co-chair of the New York Association for Gender Rights Advocacy (NYAGRA), said, "We welcome constructive attempts to amend the bill to include `gender identity and expression,' but from all that we can gather from our sources, the chances of that happening are quite small. We can't support SONDA because it is not transgender inclusive, but we won't oppose it."

NYAGRA tried to get Assembly sponsors of SONDA to include transgender protections a year ago and was rebuffed.

"Steve Sanders [D-East Village] deferred to the Pride Agenda," she said.

Park is also very wary of relying on the legal strategy suggested by Soref.

"No case law suggests that transgendered people are covered under sex or gender," she said. "There is only the 1977 Renee Richards v. USTA case which protects all post-op transsexual tennis players."

In New York City, former Mayor Rudy Giuliani opposed adding gender identity to the human rights law based on the argument that transgendered people were already covered. Mayor Mike Bloomberg agreed with that opinion, but, when faced with the gender rights measure passed this past Spring, said that there was no harm in explicitly adding "gender identity" the city's human rights law. The Pride Agenda supported passage of that bill and another like it in Rochester.

Andrea Sears of the New York Transgender Coalition said that her group will be sending a busload up to Albany on the 17th to push for transgender inclusion in SONDA. Paisley Currah of the Transgender Law and Policy Institute said, "This is probably the last time that we'll have a chance to include gender identity for years and years." She cited a recent Human Rights Campaign survey that found 61 percent of Americans in favor of protecting civil rights based on gender identity.

Soref worries that this last minute activity around transgender inclusion is "creating an atmosphere that could diminish the victory" for SONDA, which he termed "the biggest the community has had in 31 years."

"Every element of the community can build on it for future needs," Soref continued. "It means that we have established a successful working relationship with the Republican Party. This should be seen as an undiluted victory. We may need to do more, but it would be a terrible thing if it passed and it was seen as anything less than historic."