Report supporting the Gender Expression Nondiscrimination Act (GENDA)
SUMMARY
Although New York State’s Human Rights Law currently prohibits discrimination based on sex and sexual orientation, these categories do not explicitly and adequately protect individuals who are discriminated against because of their actual or perceived gender identity or expression, such as transgendered persons. The City Bar supports the passage of the Gender Expression Nondiscrimination Act (GENDA) which adds “gender identity and expression” to the list of categories protected under various statutes prohibiting discrimination by the state and/or in employment, education, housing, and public accommodations. The bill extends nondiscrimination protections to transgender and gender variant people, and further adds “gender identity and expression” to the list of categories in the hate-crimes statute, making crimes motivated by animus toward a person’s gender identity or expression eligible for a penalty enhancement.
New York courts have held that existing laws banning discrimination based on sex or sexual orientation do not protect transgender people. Thus, the numerous lawsuits alleging discrimination based on gender identity and expression have been almost uniformly unsuccessful. A number of localities in New York have already recognized the pressing need for the protections GENDA provides, passing laws prohibiting discrimination based on gender identity and expression. Those localities include Suffolk, Tompkins and Westchester counties, and the cities of Albany, Binghamton, Buffalo, Ithaca, New York, Rochester and Syracuse. This bill would greatly help in affording protections to transgender and gender variant people from discrimination, harassment, and assault to the same extent such protections are now provided to other groups under New York law, e.g. racial minorities, as well as those individuals who identify as gay and lesbian.
Originally Issued April 2009; Reissued January 2019
BILL INFORMATION
A.747 (M. of A. Gottfried) / S.1047 (Sen. Hoylman) – Prohibits discrimination based on gender identity or expression and includes offenses regarding gender identity or expression under the hate crimes statute (NYS 2019); A.3358 / S.7010 (NYS 2017-18)
OUTCOME
Signed by the Governor, Chp. 8 – January 25, 2019
REPORT
REPORT ON LEGISLATION BY THE LESBIAN, GAY, BISEXUAL AND TRANSGENDER RIGHTS COMMITTEE, THE CIVIL RIGHTS COMMITTEE, THE ENHANCE DIVERSITY IN THE PROFESSION COMMITTEE AND THE SEX AND LAW COMMITTEE
A.747 (M. of A. Gottfried)
S.1047 (Sen. Hoylman)
AN ACT to amend the executive law, the civil rights law and the education law, in relation to prohibiting discrimination based on gender identity or expression; and to amend 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.
The Gender Expression Nondiscrimination Act (“GENDA”)
THIS BILL IS APPROVED
The Gender Expression Nondiscrimination Act (“GENDA”) adds “gender identity or expression” to the list of categories protected under various statutes prohibiting discrimination by the state and/or in employment, education, housing, and public accommodations, thus extending nondiscrimination protections to transgender and gender non-conforming people.[1] It further adds “gender identity or expression” to the list of categories in the hate crimes statute, making crimes motivated by animus towards a person’s gender identity or expression eligible for a greater sentence of incarceration. The bill thus would attempt to protect transgender and gender non-conforming people from discrimination, harassment, and assault to the same extent such protections are now provided to, e.g., people of color and gay, bisexual, and lesbian people under New York law.
Recent studies continue to confirm the pervasive problems this form of discrimination poses. According to the Report of the 2015 U.S. Transgender Survey (“USTS”),[2] transgender and gender non-conforming New Yorkers are subjected to discrimination in every facet of their lives:
- Income and employment status: 18% of respondents (as high as 23% for people of color)[3] were unemployed, 3.6 times greater than the national average, while 37% (as high as 43% for people of color), were living in poverty, more than 3 times the national average.[4]
- In the workplace: 26% of respondents (as high as 21% of people of color reported losing their job because they are transgender)[5] reported experiencing an adverse employment action in the previous year, such as being fired, denied a promotion or not being hired at all because of their gender identity or expression;[6]
- At school: 77% of those students in grades K-12 perceived as transgender experienced some form of mistreatment such as being verbally harassed (54%), physically attacked (24%), or sexually assaulted (13%).[7] Harassment was reported as being so severe that it led to 14% leaving a K-12 school.[8] These numbers are significantly higher for Black and Latinx people, in particular, Latina transgender women reported: verbal harassment (61%), physical attacks (40%), sexual assaults (28%), 21% reported they left school because of mistreatment, and 12% reported being expelled from school.[9]
- In housing: 21% of respondents experienced some form of housing discrimination in the previous year, such as being evicted or denied a home, and 30% have experienced homelessness at some point in their lives.[10] Most people of color experienced homelessness and discrimination at almost twice this rate with, 57% of American Indian and Alaskan Natives and 51% of Black transgender women reported they experienced homelessness at some point in their lives.[11]
- In public accommodations or service: 31% of respondents reported mistreatment in the prior year in a place of public accommodation or service, including hotels, restaurants, buses, airports and government agencies, with 11% denied equal treatment or service and 24% report being verbally harassed.[12]
- Police and the Courts: Transgender and gender non-conforming people experience significant police misconduct, which is also a problem in New York.[13] Of those who the court system knew to be or assumed were transgender, 13% reported being denied equal treatment or service, verbally harassed, or physically attacked because of being transgender.[14] Those currently working in the underground economy were substantially more likely to have reported a negative experience in court (37%) and people with disabilities (19%).[15]
The USTS found that many respondents are impacted by the compounding effects of multiple forms of discrimination and that these issues are particularly devastating for transgender and gender non-conforming people of color who “experienced deeper and broader forms of discrimination than white USTS respondents and people in the U.S. population overall.”[16]
The New York City Anti-Violence Project, which provides services to LGBTQ violence survivors and coordinates the National Coalition of Anti-Violence Programs, recently reported a “striking increase” in anti-LGBTQ homicides.[17] Approximately half of such victims in 2017 were transgender and gender non-conforming people, representing a 42% year-over-year increase in homicides against this vulnerable community.[18] Several national media outlets have also documented the alarming recent increase in violence against transgender and gender non-conforming people.[19] Under New York’s current hate crimes statute, acts of violence motivated by the victim’s transgender and gender non-conforming status are not eligible for a hate crimes penalty enhancement.
By passing GENDA, New York would not be breaking new ground; it would, rather, merely be joining the nineteen states and the District of Columbia[20] and at least 225 localities across the country that have enacted laws prohibiting discrimination based on gender identity or expression.[21] The states that already have passed such laws are California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, Oregon, Rhode Island, Vermont and Washington.[22] Within New York, a number of localities already have passed laws prohibiting discrimination based on gender identity or expression, including Suffolk, Tompkins and Westchester counties, and the cities of Albany, Binghamton, Buffalo, Ithaca, New York, Rochester, and Syracuse. The bill is also supported by leadership throughout the State, including Governor Andrew Cuomo, Comptroller Tom DiNapoli, and Senators Kirsten Gillibrand and Chuck Schumer.
Certain opponents of GENDA contend that it is unnecessary considering Governor Cuomo’s executive order directing the State Division on Human Rights to issue regulations interpreting the Human Rights Law as prohibiting discrimination on the basis of gender identity or expression. Although these regulations are constructive and represent a crucial step forward for transgender and gender non-conforming New Yorkers, they may be vulnerable to judicial interpretation. Moreover, executive orders are subject to rescission by future governors, as we have witnessed with the Trump administration’s reversal of protections for transgender and gender non-conforming people in education, employment, and the military. GENDA remains a key step in protecting transgender and gender non-conforming people in their employment and housing, and protecting their safety, so that they can enjoy the financial and social stability necessary to become fully integrated and productive members of their communities. Therefore, the Committee supports the proposed bill and urges its passage.
While our Committees are in favor of parity and adding “gender identity or expression” to the list of protected categories in the hate crimes statute and supports the legislation as drafted, we would be remiss to advocate for increasing the breadth of hate crimes enforcement without acknowledging how the addition of a criminal statute would specifically affect the LGBTQ community, low-income people and people of color. Without a collective re-examination on why structural violence, homophobia and transphobia persists, oppression will continue unabated.[23] If the application of the law is against non-LGBTQ people who are accused of criminal activity, the sentencing enhancement is only adding tools for prosecutors to obtain a higher sentence and to incarcerate as opposed to invest in a culture of reducing harm, non-violence, reducing anti-LGBTQ bias, or ending inequity in our communities.
The Committees urge the Legislature to recognize the factors that cause the transgender and gender non-conforming community to become unsafe—namely, that the transgender and gender non-conforming community is disproportionately living in poverty,[24] living with HIV,[25] are victims of police violence,[26] and are less likely to turn to the police because of persistent discrimination and misconduct.[27] Law enforcement is also not sufficiently trained to adequately respond to hate crimes or to investigate bias or violence against transgender and gender nonconforming people[28]—even perpetuating anti-LGBTQ violence themselves.[29] Because the transgender and gender non-conforming community experiences police misconduct and because the community is also frequently targeted and hyper scrutinized when trying to utilize and/or keep their public benefits, transgender and gender non-conforming people have a difficult time escaping poverty or state supervision.[30] The Committees urge the Legislature to apportion resources in training and holding law enforcement accountable, training social services staff and law enforcement, public employees (i.e., healthcare providers, school staff, and agency employees), and reforming our criminal justice system. Further, the Committees urge the Legislature to invest in funding specifically for the transgender and gender non-conforming community to reduce disparities in education, policing, criminal justice, healthcare, housing, and employment and thereby address the root causes of discrimination.
Lesbian, Gay, Bisexual and Transgender Rights Committee
Noah E. Lewis, Chair
Civil Rights Committee
Phil Desgranges, Chair
Enhance Diversity in the Profession Committee
Kathy H. Chin, Co-Chair
Sex and Law Committee
Mirah E. Curzer, Co-Chair
Melissa S. Lee, Co-Chair
Reissued January 2019
Footnotes
[1] The bill defines “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] James, S. E. et al., The Report of the 2015 U.S. Transgender Survey, Nat’l Ctr. for Transgender Equality (2016), https://transequality.org/sites/default/files/docs/usts/USTS-Full-Report-Dec17.pdf (all sites last visited Jan. 11, 2019).
[3] For the purposes of this letter, “people of color” are defined as Black, Latino, Asian and Native Hawaiian/Pacific Islander, American Indian and Alaska Native respondents.
[4] James et al., supra note 2, at 12. See also 2015 U.S. Transgender Survey: Report on the Experiences of Black Respondents, Nat’l Ctr for Transgender Equality (2017), http://www.transequality.org/sites/default/files/docs/usts/USTSBlackRespondentsReport-Rev1017.pdf; 2015 U.S. Transgender Survey: Report on the Experiences of Latino/a Respondents, Nat’l Ctr. for Transgender Equality (2017), http://www.transequality.org/sites/default/files/docs/usts/USTSLatinReport-Nov17.pdf; 2015 U.S. Transgender Survey: Report on the Experiences of American Indian and Alaskan Native Respondents, Nat’l Ctr. for Transgender Equality (2017), https://transequality.org/sites/default/files/docs/usts/USTS-AIAN-Report-Dec17.pdf; 2015 U.S. Transgender Survey: Report on the Experiences of Asian and Native Hawaiian/Pacific Islander Respondents, Nat’l Ctr for Transgender Equality (2017), https://transequality.org/sites/default/files/docs/usts/USTS-AIAN-Report-Dec17.pdf.
[5] James et al., supra note 2, at 150.
[6] Id. at 13.
[7] Id. at 11.
[8] Id.
[9] 2015 U.S. Transgender Survey: Report on the Experiences of Latino/a Respondents, Nat’l Ctr. for Transgender Equality 13 (2017), http://www.transequality.org/sites/default/files/docs/usts/USTSLatinReport-Nov17.pdf.
[10] James, S. E., supra note 2, at 13.
[11] 2015 U.S. Transgender Survey: Report on the Experiences of Black Respondents, Nat’l Ctr. for Transgender Equality 3 (2017), http://www.transequality.org/sites/default/files/docs/usts/USTSBlackRespondentsReport-Rev1017.pdf. See also 2015 U.S. Transgender Survey: Report on the Experiences of American Indian and Alaskan Native Respondents, Nat’l Ctr. for Transgender Equality 3 (2017), https://transequality.org/sites/default/files/docs/usts/USTS-AIAN-Report-Dec17.pdf.
[12] James et al., supra note 2, at 215.
[13] National Center for Transgender Equality, 2015 U.S. Transgender Survey – New York State Report 2 (2017), http://www.transequality.org/sites/default/files/USTS%20NY%20State%20Report%20%281017%29.pdf.
[14] Id. at 219.
[15] Id. at 220.
[16] 2015 U.S. Transgender Survey: Report on the Experiences of Black Respondents, supra note 11 at 2.
[17] A Crisis of Hate: A Report on Homicides Against Lesbian, Gay, Bisexual and Transgender People, Nat’l Coalition of Anti-Violence Programs 5 (2018), http://avp.org/wp-content/uploads/2018/01/a-crisis-of-hate-january-release-12218.pdf.
[18] Id. at 7, 9.
[19] See e.g., Maggie Astor, Violence Against Transgender People is on the Rise, N.Y. Times (Nov. 9, 2017), https://www.nytimes.com/2017/11/09/us/transgender-women-killed.html. See also Associated Press, Transgender People Are Being Killed at a Record Pace, L.A. Times (Nov. 17, 2017), http://www.latimes.com/nation/nationnow/la-na-transgender-homicides-20171117-story.html.
[20] Movement Advancement Project, Equality Maps: Non-Discrimination Laws, https://www.lgbtmap.org/equality-maps/non_discrimination_laws.
[21] Human Rights Campaign, Cities and Counties with Non-Discrimination Ordinances that Include Gender Identity (2017), https://www.hrc.org/resources/cities-and-counties-with-non-discrimination-ordinances-that-include-gender.
[22] Supra note 20.
[23] See American Friends Service Committee, in a Time of Broken Bones: a Call to Dialogue About Hate Crimes and the Limitations of Legislation (an AFSC Justice Visions Working Paper) 18(2001), https://srlp.org/files/Broken%20Bones-1.pdf. Anti-LGBTQ bias persists in our courts, schools, and communities despite the fact that a large portion of the United States population is under supervision or state control due to mass incarceration. Incarceration does not reduce bias even if a perpetrator is placed in prison.
[24] Movement Advancement Project, Transgender Americans Face Staggering Rates of Poverty, Violence (2015), http://www.lgbtmap.org/news/understanding-transgender-issues-unfair-price-release. See also New York State Report, supra note 13, at 1, reporting that 37% of transgender New Yorkers are living in poverty and 18% are unemployed.
[25] James et al., supra note 2, at 122.
[26] 2015 U.S. Transgender Survey – New York State Report, supra note 13, at 2 (finding 61% of New York respondents, who thought a police officer knew or did know they were transgender, reported experiencing some form of mistreatment).
[27] James et al., supra note 2, at 14.
[28] The Civilian Complaint Review Board, supra note 37, at 7 (finding that training is still necessary with the NYPD). See generally Tod W. Bruke, Ph.D., et al., Law Enforcement and Transgender Communities, FBI Law Enforcement Bulletin (June 11, 2015), https://leb.fbi.gov/articles/featured-articles/law-enforcement-and-transgender-communities (finding that law enforcement must be adequately trained). See also New York City Dep’t of Investigations, Review of NYPD’s Implementation of Patrol Guide Procedures Concerning Transgender and Gender Nonconforming people 2 (November 2017), http://www1.nyc.gov/assets/doi/press-releases/2017/nov/31_LGBTQ_ReportRelease_112117.pdf.
[29] Police misconduct in New York City includes prior allegations of the NYPD conducting strip searches to determine gender, handcuffing transgender and gender non-conforming people to benches and railings for extensive time, and physically abusing transgender and gender non-conforming people. Two transgender women of color successfully challenged their arrests for loitering for the purposes of prostitution in New York City in 2008 (Lamot v. City of New York et al., S.D.N.Y., 08cv5300) and 2011 (Combs v. City of New York et al., S.D.N.Y., 11cv3831). See also Angelina Mavilla v. The City of New York, S.D.N.Y., 110cv00617 and Amended Complaint and Demand for Jury Trial, Breslauer v. City of New York, S.D.N.Y., 12CV558. New York City Dep’t of Investigations, Review of NYPD’s Implementation of Patrol Guide Procedures Concerning Transgender and Gender Nonconforming people 2 (November 2017), http://www1.nyc.gov/assets/doi/press-releases/2017/nov/31_LGBTQ_ReportRelease_112117.pdf. Individuals perceived to be a part of the LGBTQ community have been affected by the NYPD’s “Stop and Frisk” policy and reported NYPD officers have consistently abused authority, misused force, and used discourteous and offensive language at them. The Civilian Complaint Review Board, Pride, Prejudice and Policing: An Evaluation of LGBTQ-Related Complaints from January 2010 through December 2015 4 (2016), http://www.nyc.gov/html/ccrb/downloads/pdf/LGBTQ-Report.pdf. See also Christy Mallory, et al., Discrimination and Harassment by Law Enforcement Officers in the LGBT Community 7 (2015), https://williamsinstitute.law.ucla.edu/wp-content/uploads/LGBT-Discrimination-and-Harassment-in-Law-Enforcement-March-2015.pdf; Center for Constitutional Rights, Stop and Frisk – The Human Impact 11 (2015), Ctr. for Const. Rights, https://ccrjustice.org/sites/default/files/attach/2015/08/the-human-impact-report.pdf (transgender women are a huge target for NYPD discrimination).
[30] Dean Spade, Normal Life: Administrative Violence, Critical Trans Politics and the Limits of Law (2015).
