SONDA and Transgender Inclusion in Pending State Legislation
by Pauline Park
Member, NYAGRA Board of Directors
January 2002

Recently, there has been much discussion within the transgender community in New York City about the Sexual Orientation Non-Discrimination Act (SONDA), the ‘gay rights bill’ currently pending in the New York state legislature. I would like to take this opportunity to inform NYAGRA members about NYAGRA’s position on this important piece of legislation.

As most of you know, SONDA does not include any transgender-specific language, and without such definitional language – for example, defining
sexual orientation to include ‘gender identity or expression,’ it is extremely unlikely that any court in this state would interpret such legislation (once enacted) as including transsexual or transgendered people, per se. SONDA defines ‘sexual orientation’ as “heterosexuality, homosexuality, or bisexuality, and so a transgendered person could only use the law (once enacted) to sue for discrimination if s/he also identified as lesbian, gay, or bisexual (LGB) and if the s/he could provide clear evidence that the discrimination involved related to his/her identification as LGB, regardless of any discriminatory intent based on gender identity or expression. In practical terms, then, SONDA cannot plausibly be regarded as even remotely transgender-inclusive.

There has been some confusion and misinformation concerning NYAGRA’s position on SONDA. When NYAGRA was formed in June 1998, getting transgender-specific and transgender-inclusive legislation enacted was among our primary goals. The full inclusion of all transsexual, transgendered, and gender-variant people in state human rights law was and remains a fundamental commitment of this organization. The question has been how to achieve that objective. At no time did the NYAGRA board of directors ever accept the proposition that SONDA was acceptable as written. Rather, the question at hand was one of strategy and tactics – how to move the ‘gay establishment’ and the state legislature to support transgender inclusion in state discrimination legislation.

The first decision that the NYAGRA board (then known as ‘the working group’) made was to meet with the the leading lesbian and gay political organization in the state. Tim Sweeney (then deputy director) and Paula Ettelbrick (then legislative counsel) recommended that NYAGRA and ESPA work together first on local legislation and then tackle the state legislature, and we accepted that recommendation.

Those who may be critical of the decision we made back in the fall of 1998 must understand the context in which it was made. NYAGRA was an entirely new organization, with no membership to speak of and no resources. The seven of us who met in David Valentine’s apartment on that hot afternoon on June 28 dreamt of creating an organization that would advocate for all transsexual, transgendered, and gender-variant people in this state; but we were also realistic enough to know that we were not in a position to dictate terms to a well-funded statewide organization that had a dozen full-time paid staff members, a membership of 14,000 or more, and an annual budget of over $1 million and that was – significantly – in a position to serve as gatekeeper on any LGBT-related legislation in the state legislature.

The transgender community (however defined) is a marginalized one with few resources and little political clout, and lags far behind the organized lesbian and gay community in terms of political organization. We in NYAGRA recognized that we could gain far more by working with ESPA than by demanding full transgender inclusion in a state discrimination bill that we were in no position politically to demand. By forming a strategic partnership with the Pride Agenda, we have been able to advance the legislative and political agenda of the transgender community far more effectively than if we had chosen to ‘tilt at windmills.’ ESPA’s support for the New York City transgender rights bill (Int. No. 754) was crucial for us to gain entree to Councilmembers and to give us credibility in the legislative arena.

At the time of NYAGRA’s formation in June 1998, there was not a single transgender political organization in New York City or state working directly and consistently on legislation. It is through NYAGRA’s campaign for Intro 754 that the transgender community has gained credibility in the legislative arena. At the time of the founding of NYAGRA, transgender inclusion in pending city or state legislation was not even seriously discussed in political circles. No lesbian/gay political organization in this city actively supported such inclusion, and no member of the City Council or the state legislature (to our knowledge) had even been approached about inclusion in discrimination or hate crimes legislation.

As we enter 2002, the political landscape has been transformed. Every major political club in New York City – including Gay & Lesbian Independent Democrats (GLID), Lambda Independent Democrats of Brooklyn, the Stonewall Democratic Club, and the Out People of Color Political Action Club (OutPOCPAC), as well as ESPA – has endorsed Intro 754 as well as including a question on Intro 754 on their candidate questionnaires (in most cases, the very first question on those questionnaires) in the 2001 election cycle. As a consequence of the support of these political clubs and crucially of the Pride Agenda, Intro 754 became widely viewed as a barometer of a candidate’s support not only of the transgender community but of the LGBT community as a whole. Remarkably, three of the four leading candidates for the Democratic mayoral nomination (Fernando Ferrer, Mark Green, and Alan Hevesi) endorsed Intro 754 a year before the November 2001 election, and even the one candidate who did not endorse the bill (Peter Vallone) did
not publicly oppose it. The Republican mayoral nominee (Michael Bloomberg) also committed himself to signing the bill, an important endorsement, given his election in November 2001. Both candidates for City comptroller and all five of the leading candidates for public advocate endorsed the bill. And some of the more progressive and LGBT-supportive candidates for City Council even approached NYAGRA proactively to ask that their names be put on the Intro 754 endorsement list.

The transgender community has made progress outside of New York City as well. Gender identity language was been included in the amendment to the Suffolk County anti-discrimination bill signed into law in 2001 as well as in the City of Rochester’s human rights law also enacted last year. And the City of Ithaca passed a hate crimes law that included ‘gender identity or presentation,’ making it the first jurisdiction in the state to explicitly recognize transgender in a hate crimes statute. And when the Dignity for All Students Act (DASA) was reintroduced in the state legislature in January 2001, it became the first piece of legislation ever introduced in that body to include transgender-specific language.

None of this was even conceivable back in June 1998. And so when we consider the issue of SONDA, we must realize how much NYAGRA’s work on Intro 754, DASA, and other pending legislation has raised expectations within the transgender community to a level far above that in 1998, when we (rightly) expected little or nothing of legislators or candidates for public office.

NYAGRA’s position on SONDA is this: state human rights law should and must include all transsexual, transgendered, and gender-variant people, whether through an amendment to pending legislation (such as SONDA), existing statute law (such as an enacted SONDA), or some other mechanism. SONDA is in many ways the ideal vehicle, as it is still pending and given that many legislators simply assume that ‘sexual orientation’ includes transgendered people. However, while we are committed to full transgender inclusion in state anti-discrimination law, we are also committed to working with ESPA where possible while challenging them when necessary. We recognize (as some in the community do not) that there is a two-step process to amending SONDA. First, we (and that ‘we’ includes not only NYAGRA but other transgender organizations and allies) must persuade the Pride Agenda that transgendered people deserve the same protections from discrimination as LGB people; and second, we must persuade the co-sponsors of SONDA in the state legislature to amend the bill.

What some may not recognize is that working at the state level presents greater challenges than working at the local level. While the Assembly is controlled by (generally progressive) LGBT-supportive Democrats, the state Senate is controlled by conservative Republicans who blocked the state hate crimes bill for 12 years because of its inclusion of sexual orientation. (That bill passed the Senate only in June 2000 and was signed into law in July 2001, without transgender-inclusive language.)

It is certainly not NYAGRA that has been blocking transgender inclusion in SONDA. And it is not solely the responsibility of NYAGRA board and staff members to secure full transgender inclusion in state law. Rather, it is the responsibility of all transgendered people and transgender-supportive LGBs and other allies to secure full transgender inclusion in state law. NYAGRA has grown tremendously over the last few years, but it remains a relatively small organization relative to well-established lesbian/gay statewide political organizations; and NYAGRA is a relatively under-funded organization as well, in relation to its mission and its needs (especially when one considers that there is little funding for lobbying or legislative work, which we do entirely on an unpaid volunteer basis). In the last few years since our founding, we in NYAGRA have focused on legislative objectives that we believe are realistically attainable (especially the passage of Intro 754) in order to build a foundation for pursuit of legislative goals whose realization are probably more distant – such as an amendment to SONDA (either pre- or post-enactment).

Members of the transgender community must begin to take responsibility for themselves and realize that they can play a role in the passage of legislation. If they are concerned about inclusion in state law, they can write their representatives in the Assembly and the Senate or visit them in Albany or in their district offices. There is nothing preventing any individual (whether transgender-identified or not) from raising the issue of transgender inclusion in SONDA or any other bill currently pending in the state legislature. Those who have expressed frustration with SONDA’s lack of transgender-specific language need to ask themselves if they have done what they could to secure full transgender inclusion in that bill or other pending legislation.

There is no one organization (let alone any one individual) who can claim to speak for the entire transgender community, and NYAGRA has never claimed to be such an organization. Instead, we in NYAGRA have advocated on behalf of the transgender community (a subtle but important distinction). We have been especially active in those areas where we believed there was a realistic opportunity for legislative action – most particularly with Intro 754, where there is a very good chance of getting the bill passed in the incoming City Council.

The strategic partnership that NYAGRA formed with the Pride Agenda back in the fall of 1998 has paid rich rewards in terms of our ability to advance a transgender legislative agenda. While we have not always succeeded in persuading ESPA to support full transgender inclusion in pending legislation (such as with the state hate crimes bill or SONDA), we have garnered their support for important bills (such as Intro 754)without which it would not have been possible to move that legislation forward.

Politics is ultimately about human relationships, and the relationships that we forged with senior staff – Tim Sweeney (the former deputy director who left ESPA in October 2000) and Matt Foreman (the outgoing executive director who left ESPA in December 2001), in particular – may change as new leadership takes over at ESPA. But we remain committed to working with ESPA staff to the extent possible while also remaining willing to challenge them – even publicly – when necessary. And we remain committed to full transgender inclusion in state law.

The post NYAGRA on TG inclusion in SONDA (2002) appeared first on Pauline Park.

Giuliani & Transgender Rights: The Untold Story
by Pauline Park
10 July 10 2007
BigQueer.com

As Rudolph William Louis Giuliani pursues his candidacy for for the Republican nomination for president of the United States, the former mayor of New York City is almost invariably described by the mainstream media as “pro-gay rights.” That reputation is largely based on a few high-level appointments to his administration and his signing a domestic partnership bill into law while mayor. But as Giuliani attempts to court the religious right in his drive for the Republican nomination, he seems to be retreating from his support even for such limited measures as domestic partnership. And there is nothing in his record as mayor to suggest that he was or is supportive of transgender rights, despite his now-famous (if not notorious) appearance in drag as ‘La Rudia.’ As members of the lesbian, gay, bisexual and transgender (LGBT) community evaluate Giuliani’s candidacy they should carefully consider his opposition to Int. No. 24, the transgender rights bill ultimately enacted by the New York City Council as Local Law 3 of 2002 after he left office.

When the New York Association for Gender Rights Advocacy (NYAGRA) was working in partnership with the Empire State Pride Agenda on the campaign for that legislation, we faced two formidable obstacles: the mayor and the Speaker of the City Council. Giuliani never made public his opposition to the bill, but behind the scenes, he conspired with then-Speaker Peter Vallone to keep the bill from coming to the floor of the Council for a vote, where we had a majority of Council members pledged to vote for it. We succeeded in pressuring the Speaker to authorize a public hearing on the bill (first introduced by Council Member Bill Perkins as Int. No. 754) in the General Welfare Committee in May 2001, and Vallone needed an excuse for keeping the bill bottled up in committee; Giuliani provided it in the form of a legal opinion from Martha Mann Alfaro (then deputy chief of the division of legal counsel in the office of corporation counsel). The March 1 memorandum advanced the spurious assertion that transgendered and gender-variant people were already protected under City human rights law, flatly contradicting the opinion that the Commission for Human Rights had offered us in April 1999, that only post-operative transsexuals (and possibly transitioning transsexuals) were covered under existing case law. Giuliani’s human rights commissioner, Marta Varela, used the Alfano memo as the basis for her claim that there was no need to make explicit the inclusion of gender identity and gender expression through statute, which she made when testifying against the legislation at the May 4 hearing. Both Giuliani and Vallone continued to insist that legislation was unnecessary, disingenuously hiding behind a memo from a staff attorney who had no expertise on transgender law. It was clear to me that Giuliani simply did not want a transgender rights bill to come to his desk, which would have forced him to choose between signing a bill into law that he did not want to sign and vetoing the bill with the strong risk of alienating his support within the LGBT community, which was not inconsiderable.

Ironically enough, anyone engaging in the kind of on-stage drag antics that Giuliani became famous for could have been fired before enactment of that ordinance, but of course, as mayor of the city of New York, Giuliani (a.k.a., ‘La Rudia’) was not vulnerable to termination of his employment for drag performance or cross-dressing off-the-job, even while transgendered and gender-variant people in this city continued to face discrimination based on gender identity and expression without any form of legal redress for the duration of his term as mayor. It was only when term limits forced Giuliani and Vallone from office in December 2001 and a new mayor and a new speaker came into office that we were able to move the bill forward. In January 2002, Councilmember Perkins re-introduced the bill as Int. No. 24, Speaker Gifford Miller brought it to the floor of the Council for a vote on April 24 — where it passed by a historic margin of 45-5 — and on April 30, the new mayor, Michael Bloomberg, signed the bill into law.

As LGBT people across the country look at Giuliani and his record on LGBT issues, they should consider the fact that, while mayor, Giuliani did everything within his power to block the New York City transgender rights bill, but disingenuously refusing to acknowledge his opposition to that legislation. A careful examination of Giuliani’s two terms will show that his reputation as a ‘pro-gay’ mayor of New York has been considerably exaggerated; only in comparison with the profoundly homophobic core of the national Republican Party would someone like Giuliani look ‘pro-gay.’ Now that he is running for the Republican presidential nomination, Giuliani seems to be running away from even the more positive aspects of his record as mayor, raising serious questions as to whether we would find an ally in a Giuliani White House, let alone a reliable ally.

This analysis originally appeared as a blog post on BigQueer.com on 10 July 2007.

The post Giuliani & Transgender Rights: The Untold Story appeared first on Pauline Park.

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

Mr. Chairman,

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.

The post NYAGRA testimony on the NYC transgender rights bill appeared first on Pauline Park.