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Will the State Senate Protect all New Yorkers from Discrimination?

Early last month, amid the ongoing controversy sparked by North Carolina’s anti-transgender legislation, the New York State Assembly passed the Gender Expression Nondiscrimination Act (GENDA). The Act aims to protect New Yorkers from discrimination in housing, education, and employment based on their gender identity or expression. Presently, both New York and Federal law lack such explicit protections.

Yet the need is great. As explained by the New York Civil Liberties Union: “In a [2011] national survey of transgender and gender-nonconforming people . . . 90 percent of respondents said they had experienced harassment or mistreatment in the workplace or had taken actions to avoid it.” Moreover, “[m]ore than half (53 percent) . . . reported experiencing verbal harassment or disrespect in a place of public accommodation.”

While several states, agencies, and courts have sought to protect transgender and gender nonconforming individuals from discrimination, they’ve often had to adopt backdoor measures—for example, by considering transgender discrimination a form of illegal gender discrimination. In late 2015, the New York State Division of Human Rights took this approach. It clarified that “discrimination on the basis of gender identity is sex discrimination,” and also that, “[t]he term ‘disability’ when used in the Human Rights Law includes gender dysphoria.”

While well reasoned, such backdoor approaches fail to provide the dignity and unambiguous protection under law that transgender and gender-nonconforming people need and deserve. As Carmelita Cruz, Director of NY Policy for Housing Works, recently explained: “Explicitly prohibiting discrimination against trans/gender non-conforming New Yorkers has both practical and symbolic benefits. Practically, passing GENDA creates a clear defined law, eliminating any legal ambiguity. Symbolically, passing GENDA sends a strong message that New York will not accept discrimination against any of its citizens.”

Yet despite the Assembly’s laudable efforts, there is good reason to be concerned about GENDA’s ultimate fate. The Assembly has passed GENDA in each of the eight previous legislative sessions only to see the bill die in the New York State Senate.

The Senate has worked irrevocable stain on its reputation through such intransigence. Equality for transgender and gender non-conforming people is long overdue in New York. In the words of Cruz, “If our government does not expressly protect its citizens, it cannot expect society to treat these individuals with anything other than contempt.” One might add that unless our government expressly protects its citizens, it treats them with nothing more than contempt. This year, as in years past, the Senate should end its contemptible opposition to human rights.

David Tracey

David Tracey

David Tracey works primarily on cases involving discrimination, wage and hour violations, employee benefits, and civil rights in the N.Y. office of Sanford Heisler, LLP.  Before becoming a lawyer, David worked as a community organizer around issues of tenants’ rights, environmental health, and gun control. He prides himself on his Bob Dylan impressions that allow him to dominate the karaoke scene.   

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