Int. No. 754 public hearing
4 May 2001
testimony on behalf of NYAGRA
by Pauline Park
Coordinator of the Legislative Work Group on Gender-Based Discrimination to the New York City Council General Welfare Committee
Hon. Stephen DiBrienza
Councilmember and Chair
I am testifying today in these hearings on Int. No. 754 on behalf of the New York Association for Gender Rights Advocacy. And on behalf of NYAGRA, I would like to thank you for your sponsorship and support of this legislation. As one of the primary sponsors of this bill, you are helping advance the attainment of full legal rights by transgendered and gender-variant people in New York City. As chair of the General Welfare Committee, you are well placed to move the legislation forward to a vote in this committee and to help move it to passage by the full Council.
As you know, NYAGRA initiated the process that led to the introduction of Int. No. 754, the bill currently before this committee. In April 1999, representatives from NYAGRA and the Gender Identity Project of the Lesbian & Gay Community Services Center met with Randolph E. Wills, deputy commissioner and head of the law enforcement bureau of the New York City Human Rights Commission. During the course of that April 19 meeting, Mr. Wills informed us that it was the official position of the Commission that transgendered people were not covered under current New York City human rights law, with the exception of post-operative transsexuals and possibly transitioning transsexuals as well. Mr. Wills said that the Commission’s position was based on a reading of the 1995 decision in Daniel Maffei v. Kolaeton Industries. It was based on that conversation that we sought advice from Council members on legislation to remedy that omission. In October 1999, NYAGRA convened a legislative work group on gender-based discrimination to study the problem of discrimination against transsexual, transgendered, and gender-variant people in New York City. That work group includes six Councilmembers (Bill Perkins, Margarita Lopez, Christine Quinn, Ronnie Eldridge, Phil Reed, and Steve DiBrienza), as well as representatives of the Empire State Pride Agenda and the Center GIP. Based on a recommendation from the legislative work group, 25 Councilmembers (along with the Public Advocate) introduced this bill last June 5 in order to amend the law to define ‘gender’ to include gender identity and expression, among other characteristics.
Allow me to explain briefly the importance of the inclusion of that phrase in the text of the law. The population that we are concerned with may be described as being composed of at least three distinct groups – the transsexual, the transgendered, and the gender-variant. Transsexuals may be defined quite simply as those who seek or have obtained sex reassignment surgery (SRS). ‘Transgender’ may be considered an umbrella term that encompasses not only transsexual men (female-to-male, or FTM) and women (male-to-female, or MTF), but also non-transsexual people who live a significant part of their lives fully in the gender opposite the sex assigned to them at birth. There are hundreds of different identities encompassed by the term ‘transgender,’ including cross-dressers, drag queens, and stone butches.
There is a third and much larger category – the ‘gender-variant’ – which includes both transsexual and transgendered people. Non-transgendered gender-variant people would include somewhat masculine females who nonetheless still identify as women as well as relatively feminine males who identify as men. This bill would protect all three categories of people – transsexual, transgendered, and gender-variant – from discrimination under New York City human rights law. While there is case law under the New York City human rights ordinance, it is limited to only a handful of decisions involving plaintiffs who were either post-operative or transitioning transsexuals, and those cases turned largely on the question of the plaintiffs’ change of legal and anatomical sex. Hence the applicability of that case law to non-transsexual transgendered and gender-variant people has yet to be fully demonstrated.
I would like to refer briefly to a memorandum from Martha Mann Alfaro (deputy chief, division of legal counsel) to Michael D. Hess (corporation counsel, City of New York) and Jeffrey D. Friedlander (first assistant corporation counsel) on the “Applicability of New York City Human Rights Law with Respect to Gender Identity Issues” (dated 1 March 2001). In her memo, Ms. Alfaro concludes that
“transgendered persons should be able to claim protection under the City Human Rights Law under two theories. A claim of discrimination based on perceived gender would be supported by Maffei and Rentos… A claim of disability discrimination would be supported by the Commission’s ruling in Arroyo…”
Implicit in the memo is a broader assertion, namely, that all transgendered people would be covered under current law. In response, I have drafted a memorandum on behalf of NYAGRA, and rather than go into a detailed legal analysis here of the corporation counsel memo, I would like to submit the NYAGRA memo (attached) as part of my testimony. I will summarize the NYAGRA memo by saying that the argument in the March 1 corporation counsel memo cannot withstand close scrutiny. Even if the March 1 memo made a convincing case that all transgendered and gender-variant people were covered under current law – which it certainly does not succeed in doing – there would be no reason not to codify this understanding in statute.
But I would urge Councilmembers not to be distracted by debates over legal technicalities. The larger issue before us is the pervasive discrimination faced by transgendered and gender-variant people in this city every day. You will hear testimony today from people who have been fired from jobs, who have been denied needed health care, and who have been threatened with physical assault in stores and other venues simply because of the way they express their gender identity. A particularly egregious case involves Jalea Lamot, a transgendered Latina who was brutality assaulted by police officers on the night of November 24, 1998, after they discovered that she was transgendered. It was not only Jalea whom those police officers assaulted, but also her entire family, including two small children.
Legislation amending City human rights law would constitute a directive to the Human Rights Commission and to other City agencies – including, importantly, the police department. Legislation would send a clear signal to employers, to landlords, to providers of public accommodations, and to ordinary citizens that transgendered and gender-variant people are entitled to the full protection of the law. And finally, and equally importantly, legislation would communicate to transgendered people themselves that they have access to legal redress through the Human Rights Commission and through private legal action.
The City Council has not only the right to enact legislation to protect transgendered and gender-variant people from discrimination; it has the obligation to do so. Given the absence of any convincing evidence that transgendered and gender-variant people are covered under current law, there is a compelling argument for legislation to ensure their inclusion under New York City human rights law. We in NYAGRA therefore call upon the General Welfare Committee to vote in favor of Int. No. 754. We call upon the Speaker to promptly schedule a vote on the bill by the full Council following the vote in committee. We call upon the Council to pass this bill. And we call upon the mayor to sign this bill into law.