Empowering the Transgender Tribe
New York Association for Gender Rights Advocacy (NYAGRA)
Empowering the Tribe
John Jay College
3 November 2011
I would like to begin by thanking Silvia Dapia and Raul Romero and their colleagues at John Jay College for organizing Empowering the Tribe and for inviting me to speak at this symposium. I’ve been asked to talk about transgender legal issues, 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.
On the theme of ‘Empowering the Transgender Tribe, there is both good news and bad. At the national level, 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. Unfortunately, neither House minority leader 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 Speaker John Boehner is unlikely to move the bill in the House, given that most of members of the Republican caucus oppose ENDA. I have heard it said that the White House and the Democratic leadership in Congress took it on faith that HRC was right in insisting that repeal of Don’t Ask, Don’t Tell was the LGBT community’s top legislative priority; and while I strongly supported elimination of institutionalized discrimination in the military, enactment of ENDA would have positively affected many more people than repeal of DADT has; the bigger mistake was setting up the binary opposition of DADT repeal vs. ENDA passage; it was a false dichotomy, and the president and Congressional leaders should never have accepted the notion that they could only focus on one LGBT rights bill at one time. But the sad reality is that ENDA has little if any chance of passage in the House before the November 2012 election, and passage of ENDA in the new session will depend to a considerable extent on which party controls the House, the Senate and the White House in January 2013.
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. 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 there is as yet no absolute majority as we go into the legislative session that starts in January and ends in late June. Sen. Thomas K. Duane (D-Chelsea) is the lead sponsor of the GENDA bill just as he was of the marriage equality legislation enacted last June as well as and the Dignity for All Students Act (DASA) enacted last September. But with Democrats once again in the minority in the Senate, the fate of the GENDA bill is once again in the hands of the Republican majority, which has never been in the vanguard of transgender rights.
Representing the New York Association for Gender Rights Advocacy (NYAGRA) in the statewide transgender civil rights coalition, I am working for passage of GENDA, but I do not see the chances for passage of the bill in the new session starting in January as being particularly high, as 2012 is an election year, with the entire state legislature up for re-election — and legislators are even less likely to take risks in election years than in off-years. Transgendered and gender-variant people face pervasive discrimination in employment, housing and public accommodations should not have to wait another year or more to secure full legal rights; but the sad reality 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 2006 report prised no one I know of and certainly no LGBT activist or progressive advocacy organization working in Albany.
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. Our rights should not be dependent on the party affiliation of the state Senate majority; but the sad reality is that passage of GENDA is more likely if the Democrats regain control of the Senate in 2013, and gaining Republican co-sponsorship of GENDA will be crucial for securing passage of the bill.
It is important to note 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.