Divide on Gender Continues
Advocates disagree on what the next steps for transgender protections
[NEW YORK, NY] - Just as they split over whether to include transgender rights in the state Sexual Orientation Non Discrimination Act, activists are divided over how to add protections for the transgender community to state law now that SONDA has been enacted.
SONDA, which bans discrimination based on sexual orientation in employment, housing, and public accommodations, passed the state Senate on December 17 by a vote of 34 to 26. It cleared the state Assembly earlier this year and Governor George Pataki signed it into law the evening the Senate approved the bill.
The Senate vote followed a bruising battle among queer activists over transgender inclusion in the bill, with state Senator Thomas K. Duane being a leading advocate in support of that unsuccessful effort.
The out gay Chelsea Democrat offered an amendment to SONDA that would have added transgender protections, but it failed, garnering the support of only 19 Democrats in the 61-member Senate.
Using the courts to establish protections for transgendered New Yorkers under the law is one scenario.
"I believe it would have been better to have done it with [SONDA]," Duane said. "I wish that someone could give a guarantee that transgender people could be covered next year, but I believe its going to be an enormous court battle."
Using the courts to advance transgender rights was backed as a possible route by state Senator David Paterson, a Harlem Democrat.
"First of all, people who are transgendered may be protected under the law now," he said at a press conference following the vote.
Paterson, who leads the Democratic minority in the Senate, cited two legal cases in which courts have concluded that transgendered people are protected by existing nondiscrimination laws.
"There have been two significant court cases, one in New York and one in New Jersey, where discrimination against a transgender person is considered discrimination based on sex," he said. That kind of discrimination is banned under New York State law.
Pauline Park, the co-chair of the New York Association for Gender Rights Advocacy, disagreed that litigation would be effective.
"There is no case law under the New York State human rights law that suggests that transgendered people are already covered," Park said. A New York court would not necessarily be swayed by a decision out of New Jersey, she added.
"It would not be a binding legal precedent." Park said. "There is no reason to believe that New York courts would rule the same way."
Ultimately, litigation is "no easier than legislation" and a lawsuit could take as long to achieve its goal as a concerted lobbying effort, according to Park.
"I don't know that the likelihood of getting a big win through litigation is very high," Park said.
Paterson also suggested that legislators might be willing to add transgender protections to the state human rights law when they see that their vote on SONDA does not have devastating consequences for New York or their political careers.
"As we make that clear and understood and perhaps use the case law to buttress it, and SONDA will buttress it, then it shouldn't be too hard to amend the human rights law to include transgender as a protected class," Paterson said. "I think it's going to happen. I just felt that some of the members on the other side didn't understand the transgendered community. The more they do, as was the case with sexual orientation, I think they'll come around."
The Empire State Pride Agenda (ESPA), the state's leading gay lobbying group, has argued for enacting an "omnibus bill" that would fix the state human rights law and the State Division of Human Rights, the agency that handles discrimination cases. The division has been plagued by huge backlogs in its cases. Transgender protections could be added at that time, according to Matt Foreman, ESPA's executive director.
He said his group had broached the idea of introducing an "omnibus bill" with Republican Joe Bruno, the state Senate majority leader.
"We raised it with him," Foreman said. "We raised the issue of coming back with an omnibus human rights law and he's open to looking at that."
That bill would be in front of the legislature by 2004 and a vote on it would be a campaign issue, according to Foreman.
Joann Prinzivalli, director of the New York Transgender Rights Organization, was aware of that omnibus proposal and thought it had some chance for success.
"The vote on the amendment was encouraging," she said. "I know that there are 19 Democrats who would react positively to sponsoring a bill."
But that strategy was rejected by some activists who championed transgender inclusion in SONDA.
"I don't think that is actually going to be the vehicle at the end of the day," said Charles King, co-president of Housing Works, an AIDS service organization. "Sneaking transgender rights through the back door is not going to happen...What we are advocating for is a straightforward transgender bill."
It is more likely that transgender protections will come in a bill like SONDA, according to King, who argued that the effort his group, Duane, and others waged may contribute to that outcome. Activists lobbied members of the Senate and Assembly on transgender inclusion this year, and newspaper editorials, including one in The New York Times, urged legislators to add those protections. The 19 "yes" votes on Duane's amendment are evidence of some success.
"We were able for the first time able to get a house of the state legislature to debate and vote on transgender rights," King said. "We have a lot of work to do on the Republican side of the Senate to prove to Senator Bruno that this is also an issue whose time has come. I like to believe that with a diligent, concerted effort we could see human rights extended to transgender people within the next five years."
Other activists questioned if a legislative route could be effective, now that the effort to include gender identity upfront has failed.
"I think it would be extremely hard to get a bill through that would protect people because of gender variance," said Rusty Mae Moore, a co-chair of the Metropolitan Gender Network.
Transgender issues are relatively new to many elected officials and educating them can take years. That explains, in part, why activists fought so hard for trans inclusion in the bill just passed.
"It's a lot easier for us to get civil rights when we are with the GLBT community than when we are by ourselves," Moore said in an interview prior to the vote. That education, however, was furthered by the debate, regardless of the outcome, she conceded.
"The upside of it is having gone through this process we got more press on transgender stuff," Moore said. "In that sense it raised the issue to a front burner."
A major obstacle before any effort to advance rights for the transgender community is the residual anger from the SONDA debate. Many activists on both sides of the issue have pledged to work together following the vote, but they've also said, both publicly and privately, that they remain very angry at their opponents. For the transgender community that feeling is especially poignant.
"Trans people are really upset," Moore said. "It's a psychological moment that is very unsettling when you are officially considered a non-person by the state and the gay and lesbian community... This is the first time that we have had this feeling... There was a feeling of betrayal from the lesbian and gay community."