As the debate over civil rights protections on the basis of “gender identity and expression” heated up in Congress, five of New York City’s members in the House of Representative voted against the federal Employment Non-Discrimination Act on November 7 because it does not cover transgendered people. At the same time, pressure is building in Albany for at least the Democrat-controlled Assembly to add gender identity to the state human rights law, which incorporated protections for gay people in 2002 while defeating an amendment covering people of transgender experience. In New York City, where the city law has covered gender identity since 2002, transgendered people still encounter persistent discrimination, putting this new civil rights measure to the test.
The City Law
New York City was late among major cities in adding sexual orientation to its human rights law. It did not pass what was known as the “gay rights bill” until 1986 and took until 2002 to add gender identity. Michael Silverman, executive director of the Transgender Legal Defense and Education Fund called the city law “great,” but said, “That doesn’t mean we don’t have a long way to go.”
Silverman said that while much of the discrimination that many New Yorkers experience tends to be subtle, people who are transgendered still are subject to discrimination that is “so obvious and degrading” that it is hard to believe.
He is handling a complaint now from a person whose license was marked “M” for male even though she presents as a woman. When she showed identification to get served in a bar, the manager said, “Your ID says male. I can’t accept that.”
“ It’s certainly OK to ask to see an ID to verify a person’s age,” Silverman said, but it illegal to discriminate based on gender identity or expression. In response to her compliant, a police officer went to the bar on the border of Chelsea and Greenwich Village. Although sympathetic, the officer said, “We can’t do anything.”
On the last Sunday in June, Khadijah Farmer, a lesbian with close-cropped hair, was using the women’s restroom at the Caliente Cab Company in the Village when a male bouncer burst in and banged on her stall door demanding that she leave. Farmer said she tried to show the man her license identifying her as female, but the bouncer wouldn’t look at it. He threw Farmer and her friends out, making them pay for food they had just started eating. Ironically the incident took place on Lesbian, Gay, Bisexual and Transgender Pride Day just south of Sheridan Square where the Stonewall Rebellion launched the modern gay movement in 1969.
Representatives of the restaurant deny Farmer’s version of events, but refuse to offer one of their own. The Transgender Legal Defense and Education Fund is suing the Caliente Cab Company and transgendered people and their supporters have picketed it. The establishment has not, however, been put out business by an angry community
Melissa Sklarz, a veteran transgender political activist, served on a committee at the City Human Rights Commission that worked on guidelines for implementing the city transgender rights law and believes “more and more people are aware of the law now.” But, she said, “For the law to work, we need courageous people like Khadijah Farmer who are willing to stand up.”
As the Farmer case illustrates, you do not have to be a transsexual or a transitioning transperson to need the protection under the category of gender identity and expression. Farmer says she is happy being a woman, even if her style of dress and grooming lead some people to mistake her for a man. Indeed, we all cross traditional gender boundaries in small and sometimes large ways, from women who wear pants and men who wear makeup to women who fight wars and men who won’t.
Beyond the question of discrimination, these issues have very practical implications, particularly in this era when everyone must constantly show identification. Joann Prinzivalli, director of the New York Transgender Rights Organization and a transwoman, has a driver’s license that says “female.” The license was issued before 2002 when people had to have completed transgender surgery to be identified in accordance with their identity and not their biology. New York State will also change the designation on a birth certificate if one is post-operative.
But Prinzivalli’s passport still says “male” and by 2013, we are all going need a passport or federal REAL ID for air travel even within the United States and to enter federal buildings. In those cases, her gender presentation will not line up with how she is identified on her papers. “I’ll be shut out of air transportation,” she said. In the politically explosive debate over identification documents mostly dealing with undocumented immigrants, the concerns of transpeople are not considered.
Legislature Resists Transgender Protections
The Republican-led New York State Senate finally added sexual orientation to the state human rights law in 2002. But the Senate remains resistant to protecting transgendered people. It will not take up school anti-bullying legislation that includes sexual orientation and gender identity. Senate Majority Leader Joseph Bruno has said he is not interested in protecting, as he put it, “transvestites.” The Gender Expression Non-Discrimination Act has not so much as had a hearing in his house.
For its part, the Democrat-dominated Assembly voted to open up marriage to same-sex couples earlier this year. However the Assembly, under Speaker Sheldon Silver, has refused to take up amending the state human rights law to add “gender identity and expression.”
The Empire State Pride Agenda, the state’s gay and transgender lobby group, has made the Gender Expression Non-Discrimination Act its number one priority in the Assembly next year, according to Joe Tarver, communications director for the group. The bill, he said, now has 72 sponsors and 95 members committed to vote for it on the floor. Seventy-six votes are needed for passage.
Tarver noted that on October 1, the state Democratic Party approved a resolution supporting the bill. That together with the debate over transgender inclusion in the federal civil rights bill “are raising consciousness about what it means to be discriminated against based on gender identity,” he said. “It’s in the news and the political establishment is paying attention,” much the way they did to the marriage issue.
On average, according to Dan Pinello of the John Jay College of Criminal Justice, states that pass laws banning discrimination on the basis of sexual orientation wait another 14 years before adding protections based on gender identity—a legal term that was not even coined when Wisconsin became the first state to pass a gay rights law in 1982. Sklarz and Tarver believe that, it is going to take the election of a Democratic Senate for the bill to clear the legislature.
The last three states to pass gay rights laws—Colorado, Iowa and Oregon-–covered gender identity at the same time.
The Fight in Washington
In the 1970s, New York Representatives Ed Koch and Bella Abzug were among the first sponsors of a federal bill to add sexual orientation to the Civil Rights Act of 1964. The idea attracted more and more sponsors over the years, but never got a hearing in Congress.
In 1994, a scaled-down version of the federal gay rights bill was introduced covering only most forms of employment and not housing or public accommodations. Supported by a broad coalition of civil rights groups, the Employment Non-Discrimination Act also went nowhere.
In 2004, out gay Representative Barney Frank and the chief lobbyists for the bill at the Human Rights Campaign bowed to growing insistence by gay and transgendered activists across the country and included transgender protections in the bill. It, too, languished in the Republican-controlled House
But this year, just before it was to come up for a vote in the new Democratic-led Congress, Frank announced that the votes were not there for gender identity and he introduced a bill without protection for transgendered people. He said Congress could add gender identity to the law sometime in the future.
A national uproar in the gay and transgender movements ensued. More than 300 groups, led by the National Gay and Lesbian Task Force and including most statewide advocacy groups such as New York’s Pride Agenda, formed a coalition called United ENDA demanding that transgender protections be restored and that any bill without it be defeated.
New York Representative Jerry Nadler was the first member of Congress to announce he disagreed with Frank’s strategy. Nadler argues against splitting gender identity from sexual orientation—especially since President George W. Bush would veto a bill covering either.
When Frank’s gay-only bill was approved in committee last month, four liberal Democrats, including Representative Yvette Clarke of Brooklyn, voted against it because it did not include gender identity protections. Representative Anthony Wiener of Brooklyn and Queens has endorsed the stand taken by Nadler and Clarke.
The House approved the Employment Non-Discrimination Act covering only sexual orientation on November 7 by a vote of 235-184. An amendment to cover gender identity was offered by out lesbian Representative Tammy Baldwin, a Wisconsin Democrat, and withdrawn.
When the bill reached the House floor, New York Representatives Nadia Velazquez and Edolphus Towns joined Nadler, Clarke and Weiner in voting against it because of its failure to protect transgendered people. Nadler said in a statement that, if Baldwin's amendment failed, "I will not be able to vote for the underlying bill because it fails to uphold the American values of fairness and equality.” He also said, "Splitting sexual orientation and gender identity disserves the entire LGBT community and invites the kind of legal mischief that has undermined other civil rights laws."
The most extraordinary thing about this whole debate is the way in which it demonstrates how the gay rights movement has embraced people of transgender experience and how the category of gender identity is now seen as essential not just to protecting transpeople, but gays and lesbians as well. Indeed, the New York-based Lambda Legal Defense and Education Fund wrote a lengthy attack on Frank’s stripped-down bill making these points. Whatever happens, as I wrotein the Gay City News, the current debate on transgender rights presents a unique opportunity to educate the American public about how prejudices about the way all of us -- transgendered or not, gay or straight – present our gender can create inequities in the workplace and beyond.
Andy Humm, a former member of the City Commission on Human Rights, has been in charge of the civil rights topic page since its inception in 2001. He is co-host of the weekly "Gay USA" on Manhattan Neighborhood Network (34 on Time-Warner; 107 on RCN) on Thursdays at 11 PM.
