Pauline Park, a co-chairwoman of the New York Association for Gender Rights Advocacy, at the Manhattan Mall, Herald Square, Friday.
(photo: Hiroko Masuike for The New York Times)

Transgender Group Reaches Agreement on Restrooms

By Nicholas Confessore
New York Times
2 April 2005

When Pauline Park watched Mayor Michael R. Bloomberg sign an amendment toughening the city’s anti-discrimination laws two years ago, she never expected to become one of its first beneficiaries.

But yesterday, a complaint filed by Ms. Park – a co-chairwoman of the New York Association for Gender Rights Advocacy, which helped lobby for the amendment to the New York City Human Rights Law – became part of the first settlement issued under it. The amendment forbids discrimination based on sexual identity whether or not it differs from a person’s biological sex.

The settlement,

administered by the city’s Commission on Human Rights, found that people working for Advantage Security, a New York security guard company, discriminated against Ms. Park when they demanded to see her identification after she used a women’s restroom at the Manhattan Mall in Herald Square last April.

She said that she had been having lunch with friends and was “taken aback” when five guards – four men and a woman – stopped her after she used the restroom a second time that day. The first time occurred without incident, she said.

“They encircled me in a very menacing and hostile stance,” Ms. Park said.

“The female security guard demanded to know, ‘Are you a man or a woman?’ ” Ms. Park said. “I said to her that I identify as a woman. And she said, ‘One of my colleagues thought you were a man.’ ”

The settlement also covered a second incident involving the same company at a different location.

Last March, an Advantage Security guard asked Justine Nicholas for identification after she came out of a women’s restroom in a Manhattan office building where she was taking the Graduate Record Examination.

Like Ms. Park, Ms. Nicholas was born male but identifies herself and lives as a woman.

Under the terms of the settlement, Advantage Security will adopt and enforce a policy allowing people to use bathrooms “consistent with their gender identity,” said Michael D. Silverman, executive director and general counsel for the Transgender Legal Defense and Education Fund, which represented the two complainants before the commission. The company will also pay $2,500 to each complainant.

Ms. Park said she was pleased with the settlement.

In a statement released by the Transgender Legal Defense and Education Fund, Ms. Nicholas said that she had been “humiliated” by the incident and that the case would “increase the public’s awareness of transgender people’s needs.”

Officials at Advantage Security did not return several telephone calls seeking comment.

The commission’s chairwoman, Patricia L. Gatling, said that the settlement “sends a message that discrimination in any form will not be tolerated in our city.”

This article originally appeared in the 2 April 2005 issue of the New York Times.

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If you ever wondered why the New York Post is reviled by progressives and lesbian, gay, bisexual, and transgender (LGBT) activists in New York City, the Rupert Murdoch footprint daily demonstrated why in April 2005, when the tabloid printed an op-ed by Nicole Gelinas of the right-wing Manhattan Institute.

In the op-ed, Gelinas inaccurately claims that the guidelines for implementation of the 2002 New York City transgender rights law (adopted by the City Commission on Human Rights in December 2004) say that “people can pick whichever gender they want to be.” Not true. The guidelines recognized that transgendered people face pervasive discrimination and violence in this city, even after enactment of that landmark law. These sensible and practical regulations were intended to enhance public safety at minimal cost, including the safety of transgendered women who, if forced to use the men’s room, would be vulnerable to humiliation as well as harassment and assault.

But truth and the Murdoch press have been long estranged, and so the transphobic op-ed from Nicole Gelinas — complete with offensive headline — came as no surprise to any of the transgender activists that I know.

Tranny Time
By Nicole Gelinas
New York Post
18 April 2005

Human rights are self-evident and sacred: Everyone has the right to life, liberty and the pursuit of happiness. But Gotham has gone one further: New York’s Commission on Human Rights has determined that everyone in the city has the inalienable right to . . . dress up in women’s clothing and use the women’s restroom?

Last year, Pauline Park, who is biologically male but views herself as a woman and dresses as one, used the women’s public restroom at the Manhattan Mall. After she used the same restroom again, five security guards from Advantage Security stopped her. Park told The New York Times: “The female security guard demanded to know, ‘Are you a man or a woman?’ I said to her that I identify as a woman. And she said, ‘One of my colleagues thought you were a man.’ ”

The same thing happened to Justine Nicholas, who, like Park, is biologically male but identifies as a woman: Park was stopped by Advantage guards after using a women’s restroom at a different location.

Enlightened people would view the above incidents as awkward situations — but Mayor Bloomberg has turned them into human-rights violations. Bloomberg outlawed “gender-identity” discrimination in 2002 — and last December, the Human-Rights Commission released guidelines to enforce the new law.

The law covers people whose “gender identity and/or gender expression does not match society’s expectations of how an individual who was assigned a particular sex at birth should behave in relation to their gender.” It covers, but is not limited to, pre-operative transsexuals and, as the commission notes, “drag queens or kings.”

Sounds complicated — and it is. It’s also expensive. Violations carry fines up to $250,000.

The law is a waste of taxpayer money — the Human Rights Commission’s budget could go toward keeping libraries open late.

Worse: The law will compromise public safety and punish employers. The law covers “challenging an individual’s gender” — so Park and Nicholas filed complaints. Under a settlement reached two weeks ago — one of the first — Advantage will fork over $2,500 apiece to each woman. (Park, as a co-chairman of New York’s Association for Gender Rights Advocacy, had lobbied for the law in the first place.)

Five grand won’t put Advantage out of business — but it’s a humiliating result for a company that did nothing wrong. Security guards are supposed to look out for unusual activity — and a man in women’s clothes in public restrooms is an unusual occurrence, and a possible security risk.

Worse, Advantage has now agreed to allow people to use bathrooms at locations it polices around the city, “consistent with their gender identity” (apparently to be unchallenged on sight). This forces guards to put gender politics above common sense, comfort and safety.

The law will also cause headaches and cost more money. It covers “housing institutions” — so what happens when a man who identifies as a woman shows up as the roommate of a female student at NYU?

The law also recommends that employers and retail stores label single-stall restrooms as “gender-neutral” — and construct private spaces in locker rooms and changing rooms. The implication: If companies don’t do these things, they could be seen as promoting an environment ripe for discrimination — and bullied into paying a fine if an awkward incident occurs.

And the law recommends that employers educate their workers, so that they don’t face hefty fines for crimes like not addressing customers “with names, titles, pronouns and other terms appropriate to their gender identity.”

Finally: The guidelines are just plain nonsensical. They note that “Nothing in the Human Rights Law prohibits restrooms from being designated by gender.” But people can pick whichever gender they want to be — which makes any attempt at gender segregation at public facilities futile.

If Park or Nicholas were ever threatened or assaulted because of her gender identity, officials would, and should, prosecute the perpetrators. But mind-boggling new regulations over “he vs. she” is the last thing New York’s businesses, and its tolerant citizens, need.

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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.

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