This letter from the board of directors of the New York Association for Gender Rights Advocacy is intended as a response to the open letter to the LGBT community from the Empire State Pride Agenda regarding the issue of transgender inclusion in the the Sexual Orientation Non-Discrimination Act (SONDA).
In our view, the open letter from Joe Grabarz (executive director) and Matt Foreman (executive director, 1997-2001) is an entirely inadequate response to the call for a fully transgender-inclusive SONDA bill that we and other transgender advocacy organizations have made. In the letter, the Pride Agenda leadership asserts that “we have done more to make government responsive to transgender issues than any other single organization in the state.” We in NYAGRA would like to think that we have contributed as much, if not more so, to that effort than has ESPA. After all, when we first met with the Pride Agenda staff in November 1998 (shortly after our formation in June 1998), ESPA was really doing nothing on transgender issues, and it was that meeting that prompted ESPA to begin taking transgender issues seriously. Since the Pride Agenda leadership have taken the time to lay out a full-length apologia for their position on SONDA and transgender issues, we have decided to respond with a point-by-point rebuttal.
1. The Scope of SONDA
ESPA: “Opponents of SONDA are saying that it will only cover ‘only those who can pass for straight.’ This is completely untrue. The actions and perception of the discriminating party–not the sexual orientation of the victim–are what’s relevant.”
NYAGRA: We in NYAGRA have never claimed this (nor do we view ourselves as opponents of SONDA). Rather, we have pointed to the potential legal loophole in the language of SONDA. It is at least conceivable that an employer could discriminate against the most gender-variant (non-transgendered) lesbians and gay men even under SONDA. The case of Dawn Dawson is instructive here. An extremely masculine lesbian hair stylist, Dawson was fired last year by a hair styling salon in Manhattan even though her more feminine lesbian colleagues at the firm were not. Circumstantial evidence strongly suggests that it was Dawson’s gender presentation that was the issue for the firm. And the firm may claim that they fired Dawson for ‘inappropriate’ gender expression, not because she was a lesbian. This potential legal lacuna is precisely why we in NYAGRA have advocated for inclusion of terms such as ‘gender identity or expression,’ not ‘transgender,’ in legislation, because such language would protect the broadest category of people, including non-transgendered gender-variant lesbians, gay men, and bisexuals (LGBs) as well as transsexual and transgendered people. In opposing inclusion of ‘gender identity or expression’ in SONDA, the Pride Agenda does a disservice to gender-variant LGBs whose protection under SONDA would be enhanced by such language.
ESPA: “There will be many cases where SONDA will apply to a firing of a straight transgender person, and it will almost always apply to the firing of a gay or lesbian trans person…”
NYAGRA: Such confidently sweeping statements require evidence, which the letter’s authors do not provide. In reality, it would depend very much on the circumstances of the case, and the extent to which the transgender identity of the plaintiff could be connected to ‘perceived sexual orientation.’ Rather than offer evidence for this assertion, the letter’s authors shift the focus to the state hate crimes law enacted in July 2000 (without the transgender-inclusive language that NYAGRA advocated for), contending that a bias crime against a transgendered person under that law could be prosecuted “as a hate crime based on gender, according to an interpretation of existing law by a number of New York district attorneys, as well as the New York State Attorney General’s Hate Crime Manual for Prosecutors.” It is important here to point out that opposition to inclusion of gender identity and expression within the Hate Crimes Bill Coalition was led by two individuals – Matt Foreman of ESPA and Howie Katz of the Anti-Defamation League (who was coordinator of the coalition). We in NYAGRA would commend the Pride Agenda for going to the attorney general to seek transgender inclusion in his manual for prosecutors, but we have to point out that those guidelines are not legally binding on any district attorney in the state. And the only district attorneys that have publicly pledged to prosecute transgenderphobic hate crimes under the new statute are those in Westchester, Brooklyn, and Queens – three relatively liberal jurisdictions downstate. The real question is whether more conservative DAs upstate will prosecute, and as yet, there is no evidence either way.
2. A Strategy to Gain Non-Discrimination Protections for Transgender Persons
ESPA: An overwhelming passage in New York City of Intro. 754 is probably the best thing that can be done right now to further the cause of statewide transgender discrimination protection.
NYAGRA: Addition of ‘gender identity and expression’ to SONDA is undoubtedly the best thing that can be done right now to further the cause of statewide transgender discrimination protection.
ESPA: “At one point, it appeared that the City would issue an opinion that existing law already covered anti-transgender discrimination. (This was blocked only by the intervention of both the offices of the Mayor and the Speaker.) When that did not materialize, we focused exclusively on getting a bill (Intro. 754) passed.”
NYAGRA: It is not clear to us what ESPA is referring to here. The only City opinion on the issue was the specious and ill-informed memorandum from corporation counsel (3.1.2001) that Grabarz and Foreman refer to later in their letter.
ESPA: “We were the first people to discuss the bill with candidate Michael Bloomberg.”
NYAGRA: Actually, the very first conversation that anyone from the Bloomberg campaign had with advocates for the bill was one between Jonathan Capehart (the Bloomberg campaign’s LGBT liaison) and NYAGRA’s Pauline Park.
ESPA: “When we couldn’t find [a transgendered complainant who had already filed a complaint with the New York City Human Rights Commission] from the past, we tried to find someone to file a complaint. NYAGRA was unable to find anyone to do that.”
NYAGRA: This is not entirely accurate. In fact, NYAGRA was able to locate a few individuals who had filed complaints that had not been heard, but it was not possible to determine whether the lack of progress on those cases was due to the nature of the cases. And we were able to find a few new people to file complaints, but such cases take a very long time to process, and so results are not quickly forthcoming. Grabarz and Foreman claim that “many legal experts believe” that transgendered people are already covered under New York City human rights law, and yet they cite no such experts; we certainly know of no credible expert on transgender law who has claimed this.
ESPA: “We are disappointed, however, that some elements of the transgender community and others are so quick to dismiss the hard work of NYAGRA, the Pride Agenda, and friends on the City Council to pass Intro. 754. We are also disappointed that many are discounting the huge significance that passage of Intro. 754 would have for the transgender community not just here in NYC but as a stepping-stone towards future passage in Albany of statewide protections in the same way the City’s 1987 law adding sexual orientation as a protected category has helped the efforts for SONDA. We also think it is a mistake to treat its speedy passage as a foregone conclusion, instead of putting advocacy efforts into insuring that it be brought to a vote quickly and passed by a substantial, bipartisan margin (if not unanimously).”
NYAGRA: We in NYAGRA continue to work for passage of Intro 754 (now Intro 24), and we certainly do not discount the significance of passage of this bill, which would protect people from discrimination based on gender identity or expression in the largest city in the country. Much as we value ESPA’s continued support on the New York City bill, we in NYAGRA do not view the likely passage of Intro 24 as a legitimate excuse for not amending SONDA. After all, there are transsexual, transgendered, and gender-variant people upstate as well, and they deserve (and need) protection from discrimination as much as those in the five boroughs, if not more so.
The ESPA letter outlines the Pride Agenda’s work on local ordinances elsewhere in the state, pointing to Rochester and Suffolk County as victories for trans-inclusive non-discrimination legislation, but without mentioning the failure to get similar language in Westchester County’s anti-discrimination law in 2000.
ESPA: “We were informed that if this definition stayed in the bill, the entire effort–which included anti-discrimination protections on the basis of race, religion, ethnicity, etc.–would be defeated. The best we could do was to agree to the elimination of definitions for both the term ‘sexual orientation’ and ‘gender,’ thus leaving the implementation and interpretation of the law open to favorable administrative or judicial interpretation.”
NYAGRA: While it is true that there were co-sponsors of the Westchester bill who acted to remove the ‘social characteristics’ language from the definition of gender, it is also true that ESPA, by most accounts, seemed unwilling to push those legislators to retain that language. ESPA’s top priority was getting sexual orientation included in the bill, and they were unwilling to make the same commitment to transgender-inclusive language.
ESPA: “Contrary to allegations otherwise, at no time during this local organizing work did Tim Sweeney or anyone else from the Pride Agenda promise to try to amend SONDA if we were successful in getting three or four localities to pass trans-inclusive legislation.”
NYAGRA: We in NYAGRA have never made this claim, but it is also important to point out that the Pride Agenda made no effort whatsoever in getting such language into the Nassau County non-discrimination legislation enacted during this same period, and in that instance, did not even consult NYAGRA on the issue.
3. The Prospects for a Trans Inclusive Non-Discrimination Bill in Albany.
ESPA: “It is only now – 15 years after New York City added sexual orientation to its human rights laws – that Albany is prepared to take up SONDA.”
NYAGRA: We in NYAGRA would like to point out that the New York City gay rights bill was passed in 1986 (and came into effect in 1987), and that it is only now – 16 years later – that a transgender rights bill is poised for passage in the City Council. The question that we in NYAGRA would ask is, why should transgendered people have to wait another 15 or 16 years after SONDA passes to get inclusion in state human rights law?
ESPA: “We are nowhere near this point on gender identity. We are hard pressed to find a majority of Democrats, much less Republicans, who are willing to go on record voting in favor of transgender rights.”
NYAGRA: It is important to point out here that ESPA has never told legislators in Albany that transgender inclusion is crucial to them. If ESPA has not been able to get Democratic or Republican members of the state legislature to go on record in support of transgender rights, perhaps it is because they have never tried. When representatives from NYAGRA and other transgender organizations met in January with the chief of staff to Assemblymember Steve Sanders (SONDA’s primary sponsor in that chamber), he told us that Sanders was open to transgender inclusion, but that the problem was that “ESPA owns this bill.” In a subsequent conversation with NYAGRA, that same staff member told us that “If the Pride Agenda and Deborah Glick come to Steve and ask him to amend the bill [before passage in the Assembly], he will.”
ESPA: “Bluntly, the groundwork has not been done – not one public opinion poll, very little support to political candidates, few constituent visits, letters or phone calls.”
NYAGRA: We in NYAGRA have to point out that we were more than willing to do this groundwork, working in partnership with ESPA, when we first came to them in November 1998 had they only been willing to do so, but they were not. Perhaps three years of ‘groundwork’ and ‘educating’ legislators would have made the difference. But more than three years later, this response from ESPA looks more like an excuse – and not a very good one – for simply ignoring the need for transgender inclusion in SONDA or even dismissing the need for such inclusion altogether.
ESPA: “This is the cold political reality of Albany and we challenge anyone to give credible evidence otherwise. This reality can change, but it will take time and work.”
NYAGRA: When the Pride Agenda was willing to work with NYAGRA on the New York City bill, we were able to change that reality. It is ultimately a question of political will, and when it comes to SONDA, ESPA simply does not have the political will or the commitment to full transgender inclusion in state law to be willing to engage that process of changing reality.
ESPA: “The question then is: should we abandon SONDA, now on the verge of passage, and delay for many years protecting the nearly 40% of the state’s gay, lesbian and bisexual population who live in upstate towns and counties without legal protections from discrimination? We say no.”
NYAGRA: For us in NYAGRA, the question is, should we abandon the effort to include transgendered people who live in upstate towns and counties without legal protections from discrimination? We say no. We believe that transgendered and gender-variant people upstate have just as much right to legal protection from discrimination as non-transgendered LGB people.
ESPA: “Obviously, this does not mean Albany should be ignored in terms of trans issues, that the Pride Agenda’s commitment to this issue is not real, or that anyone should have to wait a decade for a trans-specific state law. In fact, as noted above, the Pride Agenda has been the first and only organization in the state to begin introducing the topic to state government through devices like a resolution on Dignity for All Students Week (which was passed with trans specific language), changes in hate crimes reporting language with Division of Criminal Justice Service (which looks like it will require that hate crimes based on gender be identified as anti-male, anti-female or anti-gender identity or expression), and work with the State Education Department to address bias harassment in schools (where the Commissioner of Education committed to work on issues of harassment against lesbian, gay, bisexual and transgender students).”
NYAGRA: It is important to point out here that it was NYAGRA that first raised the issue of inclusion of gender identity and expression in DASA, and that ESPA initially resisted our efforts on this. It was only our insistence on the necessity for protecting transgendered and genderqueer youth that prompted ESPA to talk to Assembly education committee members about trans-inclusion in the bill. ESPA’s Ross Levi facilitated a conference call with NYAGRA representatives and Assemblymember Steve Sanders’ chief of staff which led to inclusion of such language in the redrafted bill that was reintroduced in the Assembly in January 2001. We worked with ESPA’s Ross Levi to facilitate the inclusion of gender identity and expression in the DCJS guidelines for reporting language; but while helpful, this is no substitute for a change in statute law through an amendment to the 2000 hate crimes law, something which the Pride Agenda has as yet refused to commit to publicly.
ESPA: “Passage of SONDA will help, not hinder, future trans-inclusive legislation in Albany… This will lay a good political foundation and prepare legislators to do the right thing on transgender issues.”
NYAGRA: Legislators that we have spoken with were under the impression that sexual orientation includes transgendered people; hence, the political risk to passage of SONDA that ESPA asserts amending the bill would engender represents an entirely untested hypothesis. We in NYAGRA would like to ask how many legislators ESPA has queried on the question of trans-inclusion in the bill, and how many would say that they would vote for the unamended SONDA but vote against a trans-inclusive SONDA.
4. The Need to Pursue All Avenues for Achieving Non-Discrimination Protections
ESPA: “Unlike sexual orientation discrimination, there is a strong possibility under existing case law (cases like Richards v. United State Tennis Ass’n and Rentos v. Oce-Office Syst.) that anti-transgender discrimination is already covered under New York State law.”
NYAGRA: In fact, the Richards case involves a post-operative transsexual and the Rentos case involves a transitioning transsexual. Both decisions were narrowly written, and so there is no evidence to suggest that they would provide any basis for believing that transgendered people (other than post-op transsexuals) would be covered under state human rights law. The Rentos case is applicable to New York City law, and simply affirms the earlier Maffei case. Rentos turns on the change of legal and anatomical sex by the plaintiff (Corinne Rentos), and was so narrowly written that it does not provide any confidence that it could be extended to include the vast majority of transgendered and gender-variant people, who do not undergo medical transition. The Richards case establishes only that post-op MTF transsexual professional tennis players cannot be banned from professional women’s tennis merely on the basis of a chromosomal sex test.
ESPA: “Despite the fact that members of the transgender community reject this approach to achieving non-discrimination protection, it needs to be discussed. A dozen state courts, mostly here in the northeast, have already interpreted language in their laws similar to New York’s Human Rights law as prohibiting discrimination on the basis of gender presentation.”
NYAGRA: Court rulings under state law elsewhere would only have ‘persuasive’ and not ‘precedential’ value in cases under New York State law; in other words, at best, they might be used by a sympathetic judge as material in writing a pro-transgender opinion; but they would not be legally binding on any court in New York state.
ESPA: “The New York State Attorney General and a number of New York District Attorneys have interpreted sex and/or gender as including transgender people in the context of hate crimes legislation.”
NYAGRA: Once again, the New York state attorney general’s opinion is not legally binding on any district attorney in the state but merely constitutes a recommendation to prosecutors regarding implementation of the hate crimes law.
ESPA: “This issue can be resolved through a legal challenge, or working within the state’s bureaucracy. It is not unusual to follow a strategy that utilizes the courts or administrative challenges to achieve civil rights before or while seeking for a codification of those rights by government.”
NYAGRA: Litigation can be an adjunct to legislation, but it is no substitute for it. Litigation is a risky business, as the long and dismal history of such attempts by transgendered plaintiffs from Karen Ulane onwards has demonstrated. Most transgendered plaintiffs have lost their cases in jurisdictions around the country. Litigation is also expensive and time-consuming. Given the backlog in the New York State Human Rights Commission, it can take ten years or more for a case to wind its way through the state administrative process. Transgendered and gender-variant people cannot wait and should not have to wait another decade or more for basic human rights in this state. It is also emphatically not the right of the Pride Agenda to determine how the transgender community pursues its rights. Transgender community organizations will determine for themselves how to pursue civil rights legislation in this state. And the fact that ESPA is encouraging transgender advocates to pursue transgender rights under state law through litigation itself demonstrates ESPA’s lack of commitment to transgender rights. If ESPA were genuinely committed to full transgender inclusion in state human rights law, it would commit now to supporting legislation to achieve that goal. The fact that ESPA is not willing even to commit to an amendment to SONDA (or to state human rights law broadly) post-passage shows that ESPA’s insistence on litigation is simply a diversionary tactic, an attempt to divert attention from the real issue, which is ESPA’s lack of commitment to transgender rights. In sum, then, ESPA’s open letter to the community constitutes an ill-informed apologia for an adamant and inexcusable refusal to consider transgender inclusion in SONDA. The specious arguments in the Pride Agenda’s open letter simply do not withstand close and careful scrutiny. The ultimate issue is in fact ESPA’s unwillingness to consider the issues of gender identity and expression