The Transgender Movement in New York: Progress and Prospects

Pauline Park GENDA sign E&J Day 2009

The Transgender Movement in New York: Progress and Prospects
Pauline Park
Chair, New York Association for Gender Rights Advocacy

TransEvent 2010:
The Empire Conference
21 May 2010

I would like to begin by thanking Kristine James, Alison Laing, and Mona Rae Mason for organizing this conference and for inviting me to speak. I’ve been asked to address the state of the transgender movement, and I would like to touch briefly on developments at the national level as well as at the local level in New York City and spend the bulk of my time looking at the current situation at the state level here in New York.

At the national level — just as at the state and local level — there is both good news and bad. The good news is that the debate over inclusion of gender identity in the Employment Non-Discrimination Act (ENDA) currently pending in Congress came to a definitive conclusion in favor of inclusion; the bad news is that the inclusive version of the bill has stalled. But it is worthwhile spending just a few minutes examining the course of events in 2007 when the great ENDA crisis erupted.

As many if not most of you may know, it took over a decade to persuade the Human Rights Campaign (HRC) and U.S. Rep. Barney Frank (D-Mass.) — the lead sponsor of the ENDA bill in the House of Representatives — to support transgender inclusion in that legislation, and in April 2007, Frank introduced the gender identity-inclusive version of the bill in the House. But without consultation with any of the LGBT advocacy organizations involved with the campaign for ENDA, Frank withdrew the inclusive bill in September 2007 and re-introduced the sexual orientation-only bill with the full support of U.S. Rep. Nancy Pelosi (D-Calif.), the Speaker of the House. Based on a whip count — the count of House members in favor of the bill — Frank and Pelosi claimed that they did not have the votes to pass the inclusive bill; but the results of that whip count were never released, and I myself could not help but suspect that there were politics afoot that had little if anything to do with the merits of the legislation.

My guess is that Pelosi and Frank wanted to use ENDA as a stick to beat the Republicans with in the November 2008 Congressional elections and calculated that the inclusive bill would be harder to use for partisan political purposes precisely because acceptance of transgendered people is not as far along as acceptance of non-transgendered gay and lesbian people. According to this logic, Republicans could more plausibly claim that more education needed to be done on issues of gender identity than sexual orientation. Shockingly, not only had Pelosi and Frank betrayed their promise to the LGBT community, the Human Rights Campaign — the largest and wealthiest national LGBT organization in the United States — also betrayed an explicit promise by Joe Solmonese, its executive director, that HRC would not move forward without transgendered people.

But what Frank, Pelosi and HRC did not count on was the formation of United ENDA — a coalition of hundreds of national, state and local LGBT organizations who demanded nothing less than a fully inclusive bill. United ENDA — which includes NYAGRA, the Transgender Legal Defense & Education Fund (TLDEF), the Empire State Pride Agenda, the National Gay & Lesbian Task Force, and the National Center for Transgender Equality (NCTE) and nearly 400 other organizations — declared its opposition to the sexual orientation-only bill, which Pelosi pushed through committee and to the floor of the House for a vote, but which failed to move forward in the Senate. Despite statements from the late Sen. Edward M. Kennedy (D-Mass.), then lead sponsor of ENDA in the Senate, that he saw no reason not to move the bill in the Senate, the controversy over the gay-only ENDA bill had taken its toll, having divided Democrats in the House; no longer a useful partisan tool for the Democratic leadership in Congress, Pelosi and Frank apparently decided not to push the Senate majority leader, Sen. Harry Reid (D-Nevada), to move the bill in the Senate.

Lambda Legal Defense & Education Fund and other LGBT organizations pointed out to Frank that the inclusion of gender identity and expression language in ENDA would help enhance protections for non-transgendered lesbian, gay,and bisexual (LGB) people as well as being necessary to ensure protection from employment discrimination for transgendered and gender-variant people; to that extent, HRC’s decision to support the non-inclusive bill represented a disservice even to its non-transgendered LGB members. The apparent point behind the withdrawal of the inclusive bill — the attempt to use ENDA as a partisan tool against Republicans in the 2008 Congressional elections — was not only a shameful betrayal of the transgender community but of the LGBT community as a whole. But the ENDA crisis of 2007 proved two things to members of Congress: that neither Barney Frank nor HRC spoke for the LGBT community; and to that extent, I see the 2007 episode as being a defining moment in the history of the national LGBT community. Now, the challenge is to get the leadership in the House and the Senate to bring the bill to the floor for a vote. Sad to say, neither House Speaker Nancy Pelosi nor Senate majority leader Harry Reid, nor President Barack Obama, have shown much real leadership in moving the inclusive ENDA bill forward this session, and the session is rapidly coming to an end, with summer and holiday breaks leaving very little time to act on ENDA.

If the ENDA crisis of 2007 constituted a defining moment regarding transgender inclusion in federal legislation as well as the national LGBT community and movement, a similarly defining moment came at the state level in December 2002, when the New York State Senate passed the Sexual Orientation Non-Discrimination Act (SONDA) without gender identity or expression. The decision to move forward with the non-inclusive SONDA bill came despite calls from transgender organizations such as NYAGRA and transgender-supportive activists for the introduction of inclusive legislation. A year before passage of the non-inclusive SONDA bill, I and several other transgender activists met with the chief of staff to the lead sponsor of SONDA in the Assembly, who informed us that he would not revise the bill without the explicit assent of the Empire State Pride Agenda, which refused to consider such a revision.

And so, when SONDA did ultimately pass the Senate in December 2002, the exclusion of gender identity and expression necessitated the introduction of new state legislation to prohibit discrimination against transgendered and gender-variant people in New York. That transgender rights legislation is the Gender Expression Non-Discrimination Act (GENDA), which was introduced in the New York state legislature shortly after enactment of SONDA.

One could say that the campaign for GENDA began the very day that the Sexual Orientation Non-Discrimination Act (SONDA) passed the Senate in December 2002 without gender identity or expression in the text of the bill. The 17th of December 2002 marked the low point of relations between the L&G portions of the LGBT community and the T segment — though in truth, there were quite a few transgender-supportive LGB people who supported inclusion in gender identity and expression in SONDA. Since then, the organized LGBT community has come together as one to support GENDA.

Unfortunately, the full weight of a unified LGBT community has not been enough to move the GENDA bill, which is currently stuck in committee in the Senate. Sen. Craig Johnson — an LGBT-supportive Long Island Democrat — currently does not have a clear majority of his committee members to move the bill out of the Investigations & Government Operations Committee and bring it to the floor of the Senate. And in a body with 60 members, 32 votes are needed for a bill to pass the Senate. My colleagues at the Empire State Pride Agenda — which coordinates the GENDA Coalition — inform me that we have a solid 30 votes and a few more potential votes, but time is running out, as the legislative session ends in late June. Civil rights legislation such as GENDA is rarely brought up in special session, so it is important that we try to move this legislation before the formal end of the legislative session next month. In fact, GENDA has become a legislative priority for the Pride Agenda, but it did not become the number one priority until the Senate defeated the marriage equality bill by a decisive margin of 38 to 24 on the second of December 2009. There were many reasons for the defeat of the marriage bill, but in the wake of that defeat, there was no longer any question that Sen. Thomas K. Duane (D-Chelsea) — the lead sponsor of the marriage equality bill as well as the GENDA bill and the Dignity for All Students Act (DASA) in the Senate — did not in fact have a majority of Senators behind the bill as he had insisted in the weeks leading up to the vote. In fairness to him, it was not only Tom Duane who pushed for a vote in the absence of clear and convincing evidence that a majority of the Senate would vote in favor of the marriage bill; Gov. David Paterson and Alan Van Capelle (then executive director of the Pride Agenda) also pushed for a vote in the Senate when it was not at all clear that the votes were there.

Obviously, it was those Democrats and Republicans who voted against the marriage equality bill who deserve primary responsibility for the defeat of that legislation. But if the strategy that led to a defeat on marriage — which will have significant implications for GENDA and for DASA — was in retrospect a flawed strategy, it is worth examining that strategy in more detail. And the strategy that the Pride Agenda pursued for the two years leading up to the December 2009 marriage vote was a distinctly partisan one. While remaining officially non-partisan, in the run-up to the 2008 legislative elections, ESPA decided to throw its weight behind the Democratic Party with the explicit objective of electing a Democratic majority in the Senate in order to move LGBT legislation in that chamber, including GENDA, DASA and above all, marriage. As should be obvious to everyone now, the flaw in that strategy was the assumption that all or at least almost all of the members of the Democratic conference in the Senate would support marriage, GENDA and DASA once a Democratic majority was firmly in control of the Senate. But on December 2 of last year, eight Democrats voted against the marriage equality bill, a far higher total than ESPA or the lead sponsor of the bill expected; with neither Tom Duane nor the Pride Agenda nor the governor able to persuade a single Republican to join the pro-marriage equality Democrats, the bill went down to defeat.

I mention the defeat of the marriage bill because it has implications for our work on GENDA as well as on DASA, making it more difficult to get any LGBT legislation through the Senate this session. Had anyone asked me, I would have advised moving the Dignity bill first, then GENDA, and then the marriage bill. Why? First, because the Dignity for All Students Act has been pending the longest — I have personally been involved with the campaign for DASA since it was introduced in its present inclusive form in February 2000, over 10 years ago, and I am, along with Ross Levi of the Pride Agenda, the only original founding member of the state DASA Coalition still involved with that campaign. Second, because we have either a majority or a near majority in the Senate to pass DASA, whereas there were simply not the votes for marriage equality at the time it was brought to the floor of the Senate for a vote back in December 2009. And third, because the history of LGBT legislation in New York strongly suggests that Senate members of both parties will be more inclined to vote for a transgender-specific bill such as GENDA after they have already passed a transgender-inclusive bill such as DASA.

Here, I would reference the passage of the state hate crimes bill by the Senate in June 2000 more than two years before the Republican-controlled Senate passed the Sexual Orientation Non-Discrimination Act in December 2002. A majority of Democrats combined with a minority of Republicans to form a majority of Senate members in favor of the hate crimes bill in 2000 and then again in favor of SONDA in 2002. Let me stress that this is a strategic and tactical issue for me, not one of priority: I personally favor immediate passage of GENDA and DASA as well as the marriage equality bill, and NYAGRA as an organization fully supports all three bills as well. But members of the state Senate have not yet voted on transgender-specific legislation, and if the pattern of sexual orientation-inclusive and -specific legislation holds, then Senators of both parties will be more inclined to pass a transgender-specific bill such as GENDA after they have voted on a transgender-inclusive bill such as DASA. And indeed, the Assembly has followed that pattern, having passed DASA first before passing GENDA.

There is an old chestnut here in Albany that the legislature will consider only one ‘gay’ bill per session; but the state Senate has failed to meet even that low standard this session, having defeated marriage equality while having taking no action as of yet on either GENDA or DASA. For all practical purposes, marriage equality is dead for this session, and so GENDA has become the top priority for ESPA by default, while DASA continues to languish as the poor step-child of LGBT legislation. In my view, New York’s LGBT community should not have to choose between protecting transgendered and gender-variant people from discrimination in employment, housing and public accommodations and protecting our youth from bullying and bias-based harassment in public schools in this state; the state Senate has an obligation to do both.

The central problem, of course, is that the New York state legislature is the most dysfunctional of any of the 50, in the considered judgment of the Brennan Center for Justice at New York University’s School of Law. The conclusion of the report, issued in December 2006, surprised no one I know of and certainly no LGBT activist or progressive advocacy organization working in Albany. And the coup that upended the Senate last June provided more evidence to support that report’s conclusion than anyone could possibly have wished for. The coup that began on June 8 and kept the Senate paralyzed for a full 30 days not only temporarily toppled the Democratic Senate majority leader, Malcolm Smith, it also upset chances for a floor vote on GENDA. The day before the coup, Colin Casey, Sen. Duane’s deputy chief of staff, called me and a number of other transgender activists to inform us that the Senate majority leader had agreed to Tom Duane’s request for a floor vote on GENDA and that the vote would take place that very week. The next day, Senators Pedro Espada and Hiram Monserrate secured their place in New York state history by joining the Republican conference in toppling the Senate majority leader and taking over the chamber. As they say, what a difference a day makes. The Senate was thrown into a full month of chaos and the fate of GENDA and every other bill pending in the Senate was cast in doubt.

Since that tumultuous month of chaos last summer, we have seen the re-establishment of at least nominal Democratic control of the Senate, a new Senate majority leader — Sen. Pedro Espada of the Bronx — elected, a division of powers between the Senate majority leader and the president pro tempore, the spectacular defeat of the marriage equality bill, the indictment of Sen. Pedro Espada on charges of looting more than $14 million from the Bronx non-profit that many believe is little more than a money-laundering operation, the conviction of Sen. Hiram Monserrate on a misdemeanor domestic abuse charge, Monserrate’s removal from the Senate by a vote of its members, a special election for Monserrate’s seat which he lost, at least two major scandals embroiling Gov. Paterson and the executive chamber, a governor who’s hit 80% disapproval rate and his decision not to run for re-election.  And you wonder why GENDA hasn’t passed the Senate yet?

With the legislative session coming to an end in little over a month from now, the chances for passage of GENDA before the end of the session are not at all clear; all the more so, since the aforementioned defeat of the marriage equality bill last December; the passage of the Dignity bill seems even less likely; that is all the more so since this is an election year, with the entire state legislature up for re-election as well as an election for the three statewide offices — governor, state comptroller and state attorney general — and legislators are even less likely to take risks in election years than in off-years. I might add that this is arguably the most important election year for a decade, because the Senate that is seated next January will determine re-districting following the 2010 Census. As we have seen, Democratic control of the Senate (or at least nominal control) is absolutely no guarantee of passage of LGBT-specific and LGBT-inclusive legislation, but Republican control in January would make it all the more difficult to get GENDA and DASA passed and would almost preclude the possibility of passage of marriage equality legislation anytime in the near future.

It is not at all a trivial matter to note that gerrymandering through highly artificial re-districting is what helped ensured continued Republican control for nearly 70 years up until the November 2008 election contrary to the long-term trend towards Democratic affiliation or at least voting behavior across the state. There is in fact nothing in the state constitution that confers on the reigning Senate majority legal authority over re-districting; rather, it is the long-standing deal between the Democratic majority in the Assembly and the Republican majority that controlled the Senate until January 2009 that maintained Republican control over re-districting of Senate districts. But that deal is not only profoundly (small ‘D’) undemocratic but also directly contrary to the interests of the Democratic Party; so why has the Assembly Speaker not repudiated that deal? The Democrats have a 2-to-1 majority in the Assembly and not even the most optimistic Republican thinks that there’s any realistic chance of overturning that Democratic majority. In contrast, the Senate is much more closely divided and it is in fact power over re-districting that makes it a relatively level playing field — that, and the fact that prisoners incarcerated in prisons upstate — most of whom are from downstate — count as residents of the Senate districts in which they are being incarcerated for purposes of re-districting. Reform of that provision as well as removal of the Senate majority’s ability to gerrymander its own district lines — by reassigning that authority to an independent state commission — would almost certainly help elect more Democrats to the Senate and would contribute to a more representative, more small ‘D’ democratic as well as large ‘D’ Democratic as well as a more progressive Senate. And such a chamber would be more amenable to LGBT legislation such as GENDA and LGBT-inclusive legislation such as DASA.

Short-term, the prospects for the passage of GENDA are not good, though I would be happy to be contradicted by a Senate vote in favor of the bill before the end of this session; long-term, I’m confident that we will get GENDA and DASA enacted into law as well as marriage equality. If the conservative president of Portugal is willing to sign a same-sex marriage bill into law in an overwhelmingly Catholic and socially conservative country such as Portugal, there is no reason that New York’s state legislature, no matter how dysfunctional, should not be able to enact marriage legislation as well as statutes prohibiting discrimination based on gender identity and expression and prohibiting discrimination and bias-based harassment in our public schools.

Let me close by noting that the odds were stacked against us when in February 2000 NYAGRA — in partnership with the Pride Agenda — began the campaign for Int. No. 24, the transgender rights law enacted by the New York City Council in April 2002. With the implacable opposition of then-Mayor Rudy Giuliani and then-Speaker Peter F. Vallone, Sr., it was actually their removal from office at the end of December 2001 when term limits came into effect that gave us a new Council Speaker willing to push the bill through the Council and a new mayor willing to sign it into law.

Of course, the situation at the state level is different in some significant respects, but the good news is that we are very close to securing a majority in the Senate in favor of GENDA, which has passed the Assembly by overwhelming margins three times now. Once we do get GENDA enacted into law, it will be important to move onto the work of implementation and enforcement, which is just as important as enactment in protecting transgendered and gender-variant people from discrimination in this state.

After enactment of Local Law 3 of 2002 by the City Council, the New York City Commission on Human Rights invited me and several other activists to form a working group to draft guidelines for implementation of the new law, ultimately adopted by the Commission in December 2004. But unfortunately, neither the Commission nor the government of the City of New York as a whole have committed sufficient resources to educate employers, landlords, and providers of public accommodations — not to mention members of the transgender community itself — on the provisions of the new law, in effect leaving it to small, underfunded transgender advocacy organizations such as NYAGRA to do that work of public education.

When we do eventually get GENDA through the state Senate and signed into law, the state legislature, state agencies, and the executive chamber of the governor must commit resources sufficient to carry out that task of public education so that every employer in this state, every landlord, every provider of public accommodations, education or credit understands that discrimination based on gender identity or expression is unacceptable in this state. So let us all commit to working for enactment of ENDA and of GENDA and full implementation of ENDA and GENDA as well as the local ordinances already enacted by city councils and county legislatures in this state that prohibit discrimination based on gender identity or expression. Let us work to bringing about the day in which gender-based discrimination in New York and throughout this country is a thing of the past. Thank you.

Pauline Park is chair of the New York Association for Gender Rights Advocacy (NYAGRA); she led the campaign for the transgender rights law enacted by the New York City Council in April 2002.

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