Empire Justice Memo of Support: Protect New Yorkers from Discrimination and Hate Crimes Based on Gender Identity or Expression

Julia Saenz April 17, 2015

In 2002, both houses of the New York State Legislature recognized that discrimination against lesbian, gay, and bisexual (LGB) New Yorkers was pervasive, and so passed the Sexual Orientation Nondiscrimination Act (SONDA), amending the New York State Human Rights Law to protect against discrimination based on sexual orientation. [1]

Currently, 18 states and the District of Columbia prohibit discrimination based on gender identity and expression. [2]  As in those jurisdictions, GENDA would add “gender identity or expression” to the list of other bases protected against discrimination in our state Human Rights Law.  The Legislature has already recognized the importance of including protections for gender identity or expression as early as 2010 with the New York Dignity for All Students Act. [3]  Governor Cuomo publicly endorses GENDA and supports inclusive policies [4] for this population, emphasizing that passing the bill would “prohibit ongoing discrimination and harassment” against transgender New Yorkers. [5]  Moreover, several cities and counties in New York have passed local non-discrimination laws and ordinances that include both sexual orientation and gender identity or expression. [6]  GENDA would also align the Human Rights Law with the federal caselaw and guidance – including from the U.S. Equal Employment Opportunity Commission, Department of Labor, and Department of Education – clarifying that some crucial nondiscrimination protections apply to transgender people. [7]  While local and federal reforms are important steps and show constituent support for this issue, these advances are piecemeal and inadequate because they do not provide the breadth of protections available under our state’s Human Rights Law – a law designed to be more expansive than analogous federal civil rights statutes.  For example, complainants are barred from suing for employment discrimination under Title VII of the U.S. Civil Rights Act of 1964 if their employer does not have 15 or more employees. [8]  Our Human Rights Law’s threshold is 4 or more employees. [9]  This is a particularly important difference for transgender people because they are more likely to be employed by small businesses [10] and face extremely high rates of discrimination in our state.

As a result, the over 58,000 New Yorkers [11] who identify as transgender remain vulnerable to discrimination in the most essential areas of life, including employment, housing, education and credit.

Indeed, alarmingly, discrimination against transgender people based on their gender identity or expression is perpetrated at even higher rates than against LGB people in New York and nationally.  In a national study, 90% of transgender people suffered “harassment, mistreatment or discrimination” at work, compared to 15% – 43% of LGB people. [12]  They also face discriminatory treatment in housing at disproportionately high rates. [13]  A 2013 study found that in New York, 11,600 transgender people have lost a job, 21,500 were not hired for a job, 11,600 were denied a promotion, 11,000 have been denied housing and 4,600 were evicted due to anti-transgender bias. [14]

Anti-transgender discrimination perpetrated in New York State and across the country causes extreme rates of unemployment and homelessness in the transgender community. [15]  Transgender people are nearly 4 times more likely to have annual income under $10,000, are unemployed at double the rate of the general population – with transgender people of color unemployed at 4 times the national rate. [16]  Transgender people who were fired due to anti-transgender discrimination are homeless at 4 times the national rate. [17]

Economic insecurity and homelessness expose transgender people as a vulnerable population that attackers target for hate violence. [18]  In fact, gender identity/expression and sexual orientation is the second highest motivator for hate crimes – second only to race. [19]  The most recent number of anti-LGBT hate violence homicides is amongst the highest ever reported and 72% of those victims were transgender women. [20]  There is also a substantial increase in the severity of hate violence incidents, including incidents involving physical and sexual violence. [21]

These stark statistics do not capture the full reality of anti-transgender violence in America, as transgender hate crimes are vastly under-reported due to factors such as victims’ fear of violent reprisals and transphobic bias within law enforcement agencies. [22]  There has recently been a string of anti-transgender attacks by strangers across New York that mirror the national increase in anti-transgender hate violence.  In Rochester, an assailant murdered 53 year-old transgender woman Fatima Woods by stabbing her twice in the torso outside a gas station on May 30, 2013. [23]  In Syracuse, Dwight DeLee murdered 22 year-old transgender woman Lateisha Green by shooting her at point blank range in front of family members on November 14, 2008. [24]  As of late August 2014 in New York City, there were a total of 75 violent anti-LGBT bias attacks, “compared to 36 reports for the same period in 2012.” [25]  Among the victims of these attacks is 21 year-old transgender woman Islan Nettles, who was beaten to death on August 17, 2013. [26]

GENDA would also expand New York’s hate crimes provisions to address this pervasive violence against transgender people.  This change is consistent with the relevant federal hate crimes statute, which was amended to include “gender identity” in 2009. [27]

Empire Justice Center applauds this bill and strongly advocates for its quick passage in both houses.

End Notes:
 [1] A.0197/S.00720, 2001-2002 Leg. Sess. (NY. 2002).
 [2] American Civil Liberties Union, Non-discrimination Laws: State by State Information Map, available at https://www.aclu.org/maps/non-discrimination-laws-state-state-information-map (last visited Feb. 26, 2015).
 [3] N.Y. Educ. Law §10-18 (2010); see id. at §11(6) (defining “gender” as “a person’s actual or perceived sex and includes a person’s gender identity or expression”).
 [4] See, e.g., NYS Dept of Financial Services, Press Release, GOVERNOR CUOMO ANNOUNCES ACTION TO HELP ENSURE TRANSGENDER NEW YORKERS RECEIVE EQUAL ACCESS TO HEALTH INSURANCE COVERAGE: Department of Financial Services Notifies Insurance Industry that Medically Necessary Treatment for Gender Dysphoria Cannot be Denied, (Dec. 11, 2014), available at http://www.dfs.ny.gov/about/press2014/pr1412111.htm.
 [5] http://www.prideagenda.org/sites/default/files/PDFs/GovLetter.pdf
 [6] The Williams Institute at UCLA, Local Laws and Government Policies Prohibiting Discrimination Based on Gender Identity in New York, (2013), available at http://williamsinstitute.law.ucla.edu/research/workplace/ny-local-gi-laws-jun-2013/#sthash.MWZyUxHm.dpuf (last visited May 14, 2014) (local laws include: New York City, City of Rochester, City of Brighton, Town of Rhinebeck, Suffolk County, City of Buffalo, City of Ithaca, Tompkins County, Albany County, Westchester County, City of Binghamton, City of Syracuse).
 [7] See, e.g., U.S. Equal Employment Opportunity Commission, Macy v. Holder, 2012 WL 1435995, at *6 (E.E.O.C. Apr. 20, 2012) (finding that anti-transgender discrimination is per se sex discrimination under Title VII); U.S. Dep’t. of Housing and Urban Development, NOTICE H 2015-01,  (Feb. 6, 2015), available at http://portal.hud.gov/hudportal/documents/huddoc?id=15-01hsgn.pdf  (clarifying that antidiscrimination protections apply to LGBT people seeking to obtain a home loan and transgender individuals seeking access to homeless shelters); U.S. Dep’t. of Ed. Office for Civil Rights, Questions and Answers on Title IX and Sexual Violence, (April 29, 2014), http://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf, and “Dear Colleague” Letter of Russlynn Ali, Ass’t Sec’y for Civil Rights, 7 (Oct. 26, 2010), http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201010.pdf, and Arcadia Unified School District Resolution Agreement, 3 (July 2013), http://www.justice.gov/crt/about/edu/documents/arcadiaagree.pdf, and Title IX and Single-Sex Elementary and Secondary Classes and Extracurricular Activities, (Dec. 1, 2014),  available at http://www2.ed.gov/about/offices/list/ocr/docs/faqs-title-ix-single-sex-201412.pdf (clarifying that Title IX’s sex discrimination protections include LGBT students);  U.S. Dep’t. of Health & Human Servs., Letter from Leon Rodriguez, Dir. of Office for Civil Rights, Dep’t. of Health & Human Servs. to Maya Rupert, Fed. Pol’y Dir., Nat’l Ctr. for Lesbian Rights, 1-2 (Jul. 12, 2012), available at http://www.hrc.org/blog/entry/hhs-makes-clear-that-nondiscrimination-protections-under-obamacare-includes (confirming § 1557 of the Affordable Care Act, 42 U.S.C. 18116, extends its sex discrimination prohibition to “claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity”); U.S. Dept. of Labor, Secretary Tom Perez, Work In Progress: Justice and Identity, (June 30, 2014), available at http://social.dol.gov/blog/justice-and-identity/ (announcing  this department is “updating enforcement protocols and anti-discrimination guidance to clarify that we [at DOL] provide the full protection of the federal non-discrimination laws that we enforce to transgender individuals”); Schwenk v. Hartford, 204 F.3d 1187 (9th Cir. 2000) (holding that the definition of “sex” under federal non-discrimination laws includes both biological differences between men and women and failure to “conform to socially prescribed gender expectations”); see also Glenn v. Brumby, 663 F 3d at 1317 (11th Cir. 2011) (holding “discrimination against a transgender individual because of her gender-nonconformity is sex discrimination” under the Equal Protection Clause of the U.S. Constitution’s 14th Amendment); see also Schroer v. Billington, 577 F. Supp. 2d 293, 308 (D.D.C. 2008) (holding discrimination based on gender transition is actionable per se sex discrimination under Title VII); see Terveer v. Billington, CV 12-1290 (CKK), 2014 WL 1280301, at *1 (D.D.C. Mar. 31, 2014) (Title VII).
 [8] 42 U.S.C. §§ 2000e(b).
 [9] N.Y. Exec. Law § 292(5).
 [10] Employment Policies Institute, Most Minimum Wage Earners Don’t Work for Large Corporations, (Oct. 2013), available at http://www.minimumwage.com/2013/10/most-minimum-wage-earners-dont-work-for-large-corporations/.
 [11] Jody L. Herman, The Williams Institute at UCLA, The Cost of Employment and Housing Discrimination against Transgender Residents of New York, 1-2 (2013), http://williamsinstitute.law.ucla.edu/wp-content/uploads/Herman-NY-Cost-of-Discrimination-April-2013.pdf [hereinafter “The Cost”] (emphasizing that even this estimation underrepresents the transgender population in New York due to factors like underreporting).
 [12] Jaime M. Grant, ET AL., National Center for Transgender Equality and National Gay and Lesbian Task Force, Injustice at Every Turn: A Report of the National Transgender Discrimination Survey, 3 (2011), http://www.thetaskforce.org/downloads/reports/reports/ntds_full.pdf [hereinafter “Injustice”].
 [13] Injustice, supra note 11, at 4.
 [14] The Cost, supra note 11, at 1-2
 [15] Injustice, supra note 11, at 2.
 [16] Injustice, supra note 11, at 2-3.
 [17] Injustice, supra note 11, at 3.
 [18] National Coalition of Anti-violence Programs (NCAVP), Hate Violence Against Lesbian, Gay, Bisexual, Transgender, Queer, and HIV- affected Communities in the United States in 2013, 23 (2014), available at http://www.avp.org/storage/documents/2013_ncavp_hvreport_final.pdf [hereinafter “Hate Violence”]; Injustice, supra note 6, at 4.
 [19] U.S. Dep’t of Justice, Federal Bureau of Investigations, Uniform Crime Report: Incidents and Offenses, 2011, 1 (2012), http://www.fbi.gov/about-us/cjis/ucr/hate-crime/2011/narratives/incidentsandoffenses_final.pdf.
 [20] Hate Violence, supra note 18, at 8.
 [21] Hate Violence, supra note 18, at 8.
 [22] U.S. Dep’t of Justice, Office of Justice Programs, Bureau of Justice Assistance, A Policymaker’s Guide to Hate Crimes, 10 (Nov. 1999), available at https://www.ncjrs.gov/pdffiles1/bja/162304.pdf.
 [23] Victoria E. Freile, Vincent Walters Accused in Fatal Stabbing of Fatima Woods, DEMOCRAT AND CHRONICLE, June 20, 2013, http://www.democratandchronicle.com/article/20130620/NEW.S01/306200034/Vincent%20Walters%20Fatima%20Woods.
 [24] People v. DeLee, 969 N.Y.S.2d 350 (N.Y. App. Div. 2013) (overturning hate crime conviction due to inconsistent jury verdicts), affirmed as modified, 24 N.Y.3d 603 (N.Y. Ct. of App. 2014) (granting leave to resubmit the charge of manslaughter in the first degree as a hate crime to another grand jury).
 [25] Michael Schwirtz, Embarking on a New Life, Transgender Woman Has It Brutally Taken, NY TIMES, September 8, 2013, http://www.nytimes.com/2013/09/09/nyregion/embarking-on-a-new-life-transgender-woman-has-it-brutally-taken.html?pagewanted=all [hereinafter “Brutally Taken”].
 [26] Brutally Taken, supra note 18.
 [27] Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act. 18 U.S.C. § 249(a), (c) (2009).