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Today is Wednesday, November 28, 2007


One down, one to go

With SONDA a reality, attention turns to transgender rights

[NEW YORK] - One down, one to go. That's the mantra of the state's gay leaders as they prepare to tackle the thorny issue of transgender rights. With SONDA signed into law, the Empire State Pride Agenda is busy building a rainbow-like coalition with like-minded groups representing Hispanics, blacks, Jews, women, labor unions and even sympathetic Catholics.

The lobbying group plans a two-fold approach. The coalition will press legislators to amend the state's patchwork human-rights laws. At the same time, ESPA plans to work with transgender-advocacy organizations to do what it can to further GENDA, the Gender Expression Non-Discrimination Act.

The lack of a transgender provision in SONDA led to some infighting among politicians and activists last year. But both side are hopeful of moving forward.

"We were certainly disappointed that ESPA chose to move forward without inclusive language," said Pauline Park, co-chair of the New York Association for Gender Rights Advocacy. But, she added, Sen. Tom Duane's amendment to include such language was "not viable legislation. There was never a realistic possibility that the Duane Bill could have passed the State Senate."

Instead, Park and other advocates support the omnibus human-rights bill as a more realistic alternative. "It will bring together broad coalitions," Park said. "It's important that we find common ground. A standalone GENDA is not at this point likely to pass."

Such a broad swath of groups means that state senators representing even the most conservative, rural districts will likely find themselves voting against at least a few constituents' interests. As Park pointed out, "You're in a much stronger position to deal with a conservative majority in the State Senate when you have organizations of color and minorities than transgenders."

Maryland, which until recently had a very pro-gay governor, could get sexual orientation added to its human-rights law. Baltimore passed a law protecting the transgendered. But the state legislature would not.

New York State currently has a comprehensive law that, according to ESPA Executive Director Matt Foreman, works better than most other states. But, he added, "The law has not been looked at in a comprehensive way in many years. Obviously, times have changed, the ways in which cases of discrimination are prosecuted have changed."

In 1991, New York City undertook a comprehensive review of its own human-rights laws; as a result, the city streamlined and consolidated the laws. The results, as documented in a front-page story in the New York Times recently, has meant that the backlog of cases, which once made adjudicating such cases nearly impossible, has been reduced to a short period of time. The caseload has decreased considerably.

One of the things that ESPA is looking to do is amend state law so that the burden of proof is not on the plaintiff. Currently, someone bringing a charge against a company must prove direct discrimination.

What ESPA hopes to do is change that to what Foreman called "disparate intent"; that is, someone can demonstrate that there is discrimination against African-Americans, for example, by the fact that there are none working in a company.

Foreman bristled at any suggestion that ESPA ignored the wishes of transgendered groups or that the organization only represents gay men and lesbians.

"My position is that there was an enormous distortion of facts and reality, much of it malicious and self-serving, around this issue," he said. "I kept my mouth shut for months in the face of these lies and distortions. It was an ugly campaign to divide the community. But I'm not look backward, only forward," he added. "Our job is to win rights for our community under the law."

There is yet another tactic open to transgendered groups and their allies: the courts. One front where this battle is being waged is birth certificates. In a recent case that received some notoriety, a man who became a woman in Wisconsin had his birth certificate changed in that state. But when he moved, Kansas refused to recognize the change.

New York City does allow transsexuals to change their birth certificates, but not New York State. Cases here have been slowly moving through the courts that challenge this and other aspects of state law, such as whether "sexual orientation," the language of SONDA and similar legislation, might not include transgenders.

ESPA can point to success in Suffolk County. Despite being home to the Hamptons, the eastern part of Long Island is generally Republican and conservative. Nonetheless, the local legislature strengthened its human-rights law to include gender-identity expression. The language of the bill, which went unremarked at the time, apparently didn't raise any eyebrows among conservative groups.

Westchester County, on the other hand, is considered relatively liberal. But when the county added sexual orientation to its human- rights law in 2000, legislators warned ESPA that the bill would go nowhere if gender identity was explicitly included.

ESPA spokesperson Joe Tarver pointed out that transgender issues and the transgender movement has moved to the forefront only in recent years, and that legislators and voters need to be better informed. The Human Right Campaign and local gay-rights groups had long believed that gender-identity expression was naturally included in "sexual orientation."

At the core, the recent fight in New York State highlights a battle in the gay-rights movement at least as old as the Stonewall Riots and very likely before. It can be summed up as "assimilationists" vs. "liberationists," in which the mainstream is pitted against more outr elements. As one activist asked, "Do we march with jockstraps in leather and women with exposed breasts, or do we show a 'positive' side to the world?"

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