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.

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As a transsexual, Justine Nicholas said she often feels like Nora in the last act of Ibsen’s “A Doll’s House.” This sense of isolation was only compounded after a security guard in Midtown demanded that she prove her gender after she walked out of a women’s restroom.

“I was born as an insider,” Nicholas, 46, said. “I lived the first 43 years of my life as a white heterosexual male and while I wasn’t fabulously wealthy, nobody questioned what restroom I used when I walked in.”

Nicholas, a teacher at the City University of New York, was among more than 60 activists, officials and legal experts at a forum at New York University on Tuesday, April 19, that discussed the implementation of law that amended the city’s Human Rights Law to include gender identity and expression as a protected category. The New York City Council overwhelmingly passed Local Law 3, which protects transgendered New Yorkers from housing, employment and public accommodation discrimination, in April 2002; Mayor Michael Bloomberg quickly signed it into law. The city’s Commission on Human Rights adopted these guidelines in December.

Michael Silverman, executive director of the Transgender Legal Defense & Education Fund, said these guidelines and amendments establish an important legal precedent. “There haven’t been many guidelines for gender identity and expression,” he said. “But when we added gender identity and expression to the city Human Rights Law, it was somewhat of a novelty under civil rights law.”

The TLDEF announced earlier this month that it had reached a settlement under the amended HRL after Nicholas and Pauline Park, co-chair of the New York Association for Gender Rights Advocacy, filed complaints with the CHR. They alleged security guards did not allow them to access public restrooms. The settlements (the first since Local Law 3 took effect) constitute an important success, Silverman said: “Having success in cases like those is pressing some hot buttons.”

Matt Foreman, executive director of the National Lesbian & Gay Task Force, described the impact of Local Law 3 as “tremendous” and added that other municipalities across the country are looking at it as a model. “This is a monumental step forward,” Foreman said. “When you do something like this it affects 8 million people. And other cities look to New York and say, “If New York can do it then we can do it also.”

Councilmember Bill Perkins (D-Harlem), who sponsored the bill, said it was part of an ongoing civil rights struggle for the transgendered. “We are not talking just about human rights but a civil rights movement,” he said. “One of the most important things we have learned is that laws don’t change attitudes.”

Sen. Tom Duane (D-West Side) and Assemblymember Dick Gottfried (D-Hell’s Kitchen) have reintroduced a bill in Albany last week that seeks to extend legal protections to transgendered people statewide. NYAGRA, the Empire State Pride Agenda and a number of other gay advocacy groups have endorsed the Gender Expression Non-Discrimination Act. Gottfried said he hopes the bill will expand protections outlined in the Sexual Orientation Non-Discrimination Act. “The experience of transgender individuals and the discrimination they face is unique,” Gottfried said. “It should be specifically identified and unambiguously rejected in our state’s civil rights laws.”

Despite these ongoing legislative and legal efforts, CHR Deputy Commissioner Avery Mehlman said he is concerned that many transgendered New Yorkers are simply unaware that they are protected under the law. “When we speak with the transgender community we see discrimination everywhere,” he said. “But we don’t see the numbers coming down to the agency to file a complaint.”

But Nicholas said this was a first step: “The fact that such a law was passed caused people to realize that their own consciousness needs to be raised.”

This article originally appeared in the 22 April 2005 issue of the New York Blade News, which is now defunct.

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Last year gay activists were fighting conservatives in their attempt to get the New York legislature to pass a statewide antidiscrimination law covering gays and lesbians. But this year they find themselves facing off with transgender groups.

For 31 years activists have lobbied the legislators to pass the Sexual Orientation Non-Discrimination Act, which would outlaw antigay discrimination in housing, employment, and other areas. The bill got a huge boost in January when Gov. George Pataki, a Republican, endorsed it in his State of the State speech. And after passing the assembly in January, the bill is expected to go before a favorable senate by June. But now transgender organizations are waging a vocal campaign to amend the legislation to include protections against discrimination based on gender identity.

The tussle in New York reflects a familiar tension that is often present between gay and transgender political groups. Gay politicos insist that excluding gender language from proposed laws is political realism. But gender groups counter that it’s hypocritical to wave the banner of civil rights while purposely excluding some of the community’s most vulnerable members.

Adding gender language to SONDA at this point “would cripple the ability to garner enough votes” to press it, said Joe Grabarz, executive director of Empire State Pride Agenda, the gay group that has led the fight for the bill. Grabarz added that the transgender groups “have done virtually no education of politicians on their issues” and that a “last-minute, ill-prepared attempt” to amend the bill would achieve only one thing: SONDA’s defeat.

But Pauline Park, of the New York Association for Gender Rights Advocacy, said that too often “gay groups are tempted to throw the trannies overboard in the name of political expediency.” She added that many lawmakers often mistakenly believe the term ‘sexual orientation’ includes transgendered people in its definition.

Even if securing transgender rights were more difficult than winning gay and lesbian rights alone, Park said, including protection for transgendered people should be based on a bedrock philosophy of equality: “It’s a question of commitment to the principle of equal rights and not leaving anyone behind.”

This article originally appeared in the 19 March 2002 issue of The Advocate magazine, which is now defunct.

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On the steps of City Hall at the press conference on 29 February 2000 announcing the public launch of the campaign for Int. No. 24, the New York City transgender rights bill. Front row: Council Member Margarita Lopez, Council Member Philip Reed, Juan Figueroa (executive director of the Puerto Rican Legal Defense & Education Fund), Pauline Park, Council Member Ronnie Eldridge, Council Member Bill Perkins. Second row: Charles King (executive director, Housing Works), Carrie Davis, Council Member Gifford Miller, Melissa Sklarz, Donna Cartwright, Council Member Christine Quinn.

A history of the New York Association for Gender Rights Advocacy (NYAGRA)
Part I: the founding (1998-2000)

Of all the organizations that I have been involved with, I am probably most closely associated in the public mind with NYAGRA.

The idea for the organization now known as the New York Association for Gender Rights Advocacy (NYAGRA) originated in a conversation that I had with Paisley Currah in May 1998.  Paisley and I drove down to Washington D.C. for GenderPAC’s national lobby day, the second that we would participate in. While on the drive back up, Paisley turned to me and said, “You know, Pauline, we can do this in New York.” Paisley (who at that point was still using feminine pronouns but who transitioned several years later) pointed out that there was not a single transgender advocacy organization in the state that was actively engaged in the legislative arena.

I pointed out that I was at that moment on the board of directors of Queens Pride House, on the steering committee of Gay Asian & Pacific Islander Men of New York (GAPIMNY), and coordinator of Iban/Queer Koreans of New York (Iban/QKNY). In short, I honestly felt that I did not have the time to get involved with founding another organization.  But Paisley persisted, and I agreed to help her with the new organization as long as I did not end up as its leader. Paisley’s organizational experience at that point was limited to participation in the Ithaca chapter of ACT-UP, a non-organization of an organization, and so her desire for my active involvement was perfectly understandable.

Paisley asked me to come up with a name for the organization, and so I thought through various possibilities, all of which had to have ‘New York’ and ‘Gender’ in them. It seemed to me that an actual acronym that spelled a word would be more effective and more memorable than a mere abbreviation. After much mental gymnastics, I eventually came up with ‘New York Association for Gender Rights Advocacy,’ which conveniently spelled ‘NYAGRA.’ That acronym evokes images of Niagara Falls, of course, which is a universally recognized landmark in the state. Paisley loved the name, and so did the other activists who attended our first meeting.

Paisley and I conferred on the activists that we should invite to the first meeting, but she left it to me to convene the meeting, which I did on June 30. David Valentine served as the gracious host for that historic first meeting, though his apartment in Greenwich Village unfortunately lacked air conditioning. Seven of us gathered around 1:30 p.m. on that hot June day in 1998: Paisley, David, and me, along with four others. Rosalyne Blumenstein was then the director of the Gender Identity Project at the Lesbian & Gay Community Services Center (since renamed the LGBT Community Center) and as such was at that moment far and away the best-known and most prominent transgender activist in the city. Carrie Davis was a peer counselor at the GIP and would succeed Roz as director a few years later. David was at that time a Ph.D. candidate at New York University and was actually working on a dissertation on transgender. Paisley was at that point an assistant professor of political science on tenure track at Brooklyn College. Donna Cartwright was a copy editor at the New York Times.

Roz left the new organization after a dispute over her role in it. NYAGRA working group members decided to hold a meeting on October 24, concurrent with the TransWorld conference at the Audre Lorde Project in Brooklyn. TransWorld was the first conference by and for transgendered people of color in New York (and anywhere in the United States, as far as I knew), and it was jointly sponsored by ALP (a community center for LGBT people of color) and the GIP; given the GIP’s sponsorship, TransWorld was billed as the fourth in a series of transgender conferences organized under the auspices of the Center and the GIP (‘transexual/transgender health empowerment conferences,’ as the conference promotional material described them).

Until the founding of NYAGRA in June 1998, the GIP had been ‘the only game in town,’ as it were, when it came to transgender advocacy in New York City, and the director of the GIP had been the ‘go-to girl’ for media comment on transgender-related public policy issues as well as social services in the city. As such, Roz carried a great deal of weight; but she harbored resentments against those she felt – rightly or wrongly – had slighted her, and she made clear to those present at the NYAGRA meeting that October 24 that she wanted to use NYAGRA to punish Tim Sweeney for what she had perceived to have been a slight to her.

At the founding meeting on June 30, members had reached consensus about approaching the Empire State Pride Agenda to try to secure transgender inclusion in the Sexual Orientation Non-Discrimination Act (SONDA) then pending in the New York state legislature. As deputy director of the Pride Agenda (or ‘ESPA,’ as everyone outside the Pride Agenda called it), Tim Sweeney would be a key interlocutor in the larger LGBT community; given that, it seemed to me foolish at best to commence any relationship with ESPA by needlessly offending its deputy director simply to redress a perceived slight pre-dating the founding of NYAGRA that had nothing to do with the organization’s legislative agenda, and I said as much to Roz. All of the founding members at the meeting and all of the new members who joined us at that October 24 meeting were in agreement on that point, and our refusal to allow Roz to use NYAGRA to prosecute her own personal political agenda – at the expense of the credibility and effectiveness of the new organization – prompted her to resign.

Fortunately, from that very first meeting (on June 30), there was an agreement that the primary mission of the organization should be to pursue transgender inclusion in legislation, especially in the Sexual Orientation Non-Discrimination Act (SONDA) and the hate crimes bill both pending in the New York state legislature. All seven activists present at the first meeting agreed on one point: our first inter-organizational meeting should be with the Empire State Pride Agenda. There would be no ‘getting around’ ESPA, which as the leading lesbian and gay political organization in the state, played a leading role in the New York State Hate Crimes Bill Coalition. When it came to SONDA, the Pride Agenda’s role was even more central: ESPA was founded (from the merger of two other organizations) specifically to get SONDA passed, and that gay rights bill was its flagship legislation.

And so on November 19 [check date], several activists representing NYAGRA met with Tim Sweeney (then ESPA’s deputy director) and Paula Ettelbrick (then ESPA’s legislative director) at the Pride Agenda’s office on Hudson Street in Manhattan. The NYAGRA contingent’s aim was to persuade the Pride Agenda to agree to amend both SONDA and the state hate crimes bill to add gender identity and expression in order to protect transgendered and gender-variant people from discrimination and hate crimes, respectively.

With regard to the latter legislation, Tim referred us to the New York State Hate Crimes Bill Coalition, which NYAGRA joined in January 1999; ESPA’s opposition to transgender inclusion in that bill would only become clearer in April 2000, as the bill headed for passage in the state Senate. As for SONDA, Tim stated unequivocally that ESPA was not prepared to consider transgender inclusion in their flagship legislation; he and Paula opined that members of the state legislature were simply not going to support transgender inclusion in the bill – a self-fulfilling prophecy coming from ESPA, as no legislator would brook their opposition to such inclusion.  From ESPA’s perspective, we must have seemed like upstarts, a bunch of transgender activists without any experience in legislative work in Albany or even at the local level. And while the NYAGRA name would become famous, at that moment, in November 1998, we were indeed unknown as an organization without a proven track record in legislative work.

Instead, Tim made a ‘counter offer’ of sorts, proposing that the Pride Agenda work with NYAGRA on local non-discrimination legislation, a suggestion that we ultimately agreed to, after significant internal discussion. It was clear to everyone present on the NYAGRA side – including Paisley Currah, Donna Cartwright, David Valentine, Sophia Pazos, Lisa Maurer (who participated by phone from Ithaca) and myself – that ESPA simply would not be moved on the issue of SONDA and that – as a new group without any resources and without any relationships with key legislators – we had no leverage to move ESPA. It was the unanimous consensus of the founding members of NYAGRA to accept an understanding with ESPA that the two organizations would work together on a local transgender rights bill and defer the question of transgender inclusion in SONDA to a later day.

Meanwhile, the new organization required infrastructure, and an organizational website was one of the first pieces of infrastructure that we could see we would need at the dawn of the Internet age. Paisley had set up a website at www.nyagra.org, though no thought was given at the time that it was technically the webmaster who would therefore be in a position to claim ownership of the website, and not the organization, should a dispute arise over its provenance – as in fact did happen. Meanwhile, the working group began to communicate regularly by e-mail, and David would set up a listserve for the founding members.

Slowly but surely over the course of NYAGRA’s early years, members of the ‘working group’ would begin to construct the rudiments of an organizational framework. But the critical decision that the founding members made at the onset to establish a ‘come one, come all’ policy for the working group would come close to undermining the organization within a year of its founding.

While there was initial consensus on legislative approach, there was dissensus from the start about NYAGRA’s organizational structure from the very beginning. At our very first meeting, I proposed a traditional board structure. Not only did I have no desire to be either president or chair of the board of directors, I was hoping that Paisley would agree to accept the top leadership title. But Carrie Davis insisted that there be “no hierarcy” in NYAGRA’s organizational structure, and Donna Cartwright derided a board structure as being ‘corporate’ and therefore inconsistent with the ideals of the organization. Ironically, Carrie worked for an organization (the Center) that had a very hierarchical staff structure governed by a self-selecting board of directors (i.e., one not chosen by its members), Equally ironic, Donna would go onto serve on the board of directors of the National Center for Transgender Equality (NCTE) some years later without any compunction. But on that hot June day in 1998, Carrie and Donna carried the day, defeating my proposal for a traditional board. Donna insisted on calling the assembled activists the ‘working group,’ a moniker that I thought was inappropriate for an advocacy organization, and worse still, insisted that the working group be open to everyone.

Hence the working group, as de facto board of directors, was open to everyone, and no vote could be taken to exclude anyone, regardless of behavior. At the time, I had a strong feeling that the ‘come one, come all’ approach that Donna insisted on and that the other founding members agreed to could lead to serious problems, and that intuition was prescient. In fact, the open door policy would very nearly be the undoing of the organization.

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