The GENDA Gap: What N.Y. Plans to Do About It

BY Julie Bolcer

September 08 2011 3:00 AM ET

When marriage equality legislation passed the New York State
Senate in June, crowds rallied outside the historic Stonewall Inn. There, in
1969, transgender bar patrons were among the upstarts who led a rebellion that
sparked the modern LGBT rights movement — all of which led to that night when
New York emerged as the most populous state in the nation to allow same-sex
marriage. But four decades later, for some of the original Stonewall insurgents, the fight for legal protection from
discrimination remains
unfinished.

“New York is viewed as a real leader on marriage, but
unfortunately, when it comes to transgender equality, New York is really
falling behind,” says Melissa Goodman, an attorney with the New York Civil
Liberties Union. “New York has more transgender citizens than any other state,
but we still don’t have basic protections for transgender New Yorkers.”

Buoyed by a remarkable victory, advocates in New York face
the unfinished business of passing long-overdue protections against discrimination based
on gender identity and expression. Despite seemingly ideal conditions for
another win, advocates know better than to take anything for granted.

An estimated 300,000 transgender people live in New York,
where half of the 20 million residents live in jurisdictions protected by local
transgender civil rights laws, including New York City, Buffalo, Albany, and
Suffolk and Westchester counties. No statewide law exists, however, which puts
New York behind 15 other states, including Colorado and Nevada — neither of
which has a civil unions law, let alone marriage equality. 

“It’s policy and it’s politics,” says Sen. Thomas K. Duane, a gay Democrat from Manhattan and lead sponsor of the Gender
Expression Non-Discrimination Act. “It’s passed in other places, but New
York is different. It tends to be progressive, but I’d have to say, it’s
renowned for being unique in the way it functions legislatively.”

There are less polite ways of describing New York’s
legislative record. National Journal in
Washington named it to a list of “The Six Most Dysfunctional State Governments”
when its inability to pass laws reached particular heights in 2009.

The story of GENDA begins in 2002, when the New York State
Senate passed the Sexual Orientation Nondiscrimination Act but rejected
an amendment to provide protections for transgender people in areas such as
employment, housing, and public accommodations. GENDA emerged as stand-alone
legislation, but throughout the past decade, the measure has languished while
others, including a hate-crimes law, a transgender-inclusive
antibullying law, and the marriage equality bill, passed under a Republican-controlled
Senate.

Some advocates hope to change that narrative as soon as the
2012 legislation session begins. As was the case with marriage equality legislation until
earlier this year, GENDA has passed the state Assembly multiple times with
bipartisan support but remains stuck in the Senate, where the example of the
successful marriage equality campaign may offer some important lessons.

“If the marriage fight showed anything, it showed that
legislators from both parties will come together and do anything when the right
case is made,” says Michael Silverman, executive director of the Transgender
Legal Defense and Education Fund. “It’s now up to advocacy groups and
individuals in New York State to make the case that GENDA is essential.”

The legislative session doesn’t start until January, but
advocates already have spent months working behind the scenes, including on
conversations with the office of Gov. Andrew Cuomo. Their strategy so far
includes public education, lobbying lawmakers, and broadening the base of
support for GENDA.

“The whole transgender equality movement is really at the
intersection of the LGBT equality movement and the gender equality movement,”
says Goodman. “Those views that fuel discrimination against transgender people
are the same type of views that fuel discrimination against LGBT people and
women.”

Public opinion stands strongly in support of GENDA, with the
most recent poll, conducted in 2008 for the Empire State Pride Agenda, showing
support from 78% of New York voters, including clear majorities of Democrats,
Republicans, and independents across all regions. That percentage exceeds peak support
for the marriage equality law, which 58% of voters backed in polls prior to
this summer’s vote.

From a lobbying standpoint, many advocates interviewed feel
confident they are close to reaching or have already secured the 32 votes
required to pass the measure in the Senate, where Republicans hold a 32-30 advantage. Every Democrat except the avowedly antigay Ruben Díaz Sr. is believed
likely to vote yes on GENDA, and at least a handful of Republicans, including
some who did not support the marriage equality bill, are considered open to the
prospect.

“More than one said, ‘I’m not going to be there on marriage,
but this transgender civil rights law sounds very interesting to me. I
definitely want to hear more. That sounds like something I could get behind,’”
says Ross Levi, executive director of the Pride Agenda, about his
group’s conversations with Republican senators. The Pride Agenda convened a
conference call of LGBT and progressive groups in August that Levi says was
marked by “a lot of renewed energy and interest and commitment” for GENDA.

Moving the bill to the floor could pose the most difficult
challenge because the full Senate has never voted on the measure. Unlike the
marriage equality bill, which failed on its first vote in the Senate two years
ago, GENDA has no official scorecard — a tool that helped gay rights groups
target senators who opposed marriage equality and replace them with yes votes.

“Transgender civil rights has support in the Republican
conference, but will it have enough energy to move it to the floor? That is the
big question,” says Melissa Sklarz of the New York Transgender Rights
Organization, a lobbying and advocacy group.

The changed political landscape after the marriage equality
vote leads some to see an opportunity for GENDA in the near future. Four
Republican senators joined 29 Democrats in passing marriage equality after a
bipartisan campaign spent almost $3 million, much of it raised from Republican sources.

“There is some political momentum that we can gain from
marriage,” says Levi. “People have seen the strength of our community. They
have seen how LGBT issues resonate with voters, and I think that gives us some
momentum.”

Some predict longer odds for GENDA in 2012, an election
year. They suggest conditions would improve dramatically in 2013, after voters
deliver a verdict on the Republican senators who supported marriage equality.

ANDREW CUOMO IN PARADE 390x (GETTY) ADVOCATE.COM

“I actually think that if the four Republicans who voted for
marriage equality in June are reelected, that would send a very strong signal
to other Republicans in the conference that voting for LGBT rights legislation
in the conference is not going to lead to their defeat,” says Pauline Park,
chair of the New York Association for Gender Rights Advocacy. “If none of the four
Republicans who voted for marriage equality is defeated next November, if GENDA
has not passed by then, I think that will greatly increase the prospects for
passage of GENDA in 2013.”

Park continues, “I put it at 50/50 in 2012, compared to
75%-80% in 2013, particularly if Democrats recapture the Senate.”

All advocates expressed gratitude for support and
involvement from Cuomo, who continued the executive order of his predecessor,
Gov. David Paterson, to protect transgender state employees from discrimination.
Cuomo’s leadership on marriage equality is widely credited with the win in his
state. The governor shows signs of a similar commitment to GENDA. As attorney
general, Cuomo negotiated a settlement with American Eagle that forced the
clothing retailer to change its discriminatory employee dress code. In an
interview with The Advocate in July
after the marriage equality victory, the governor said GENDA was a “priority.”

Senator Duane, who says he has discussed GENDA “numerous
times” with the governor and his staff members, says all agree on the
measure’s importance. The lawmaker says it is “on the front burner” to
establish an effort similar to the model that pushed for marriage equality,
with the governor in the lead, but the precise structure and timing of such an
initiative remain undetermined.

“We have to make sure it’s in a place on the governor’s
agenda that he and we are comfortable with,” says Duane. “That’s to be
determined. I’m always in a hurry. He is someone who likes action, so I believe
that he will be very sympathetic to having movement on this as soon as
possible.”

Whatever blueprint emerges, advocates seem to be under no
illusion that it would exceed the fund-raising and attention showered on the
marriage equality campaign, which brought together state and national groups
including the Human Rights Campaign, Freedom to Marry, and the Log Cabin
Republicans. Still, many say a scaled-down version of the effort would be
feasible, particularly as it relates to the tight coordination and
single-minded focus of the marriage campaign.

“I don’t expect that we are going to have the resources that
the marriage campaign had,” says Silverman, whose organization brought in $100,000
at its annual fund-raiser in May, the most ever raised for transgender rights
in a single night. “That said, there are lessons we can learn, there are pages
we can take from their playbook, and we should.”

As usual, the lessons include what victory in New York could
mean for the nation, this time with respect to the Employment Non-Discrimination
Act, awaiting movement in Congress.

“Just like the eyes of America watched New York for marriage
equality, they watch for transgender civil rights,” says Sklarz. “How can you
pass ENDA in Washington if we cannot get transgender rights in New York?”

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