New York Can Pass Same-Sex Marriage But Not Trans* Protections: How GENDA Died

A few months ago, a bill supporting the rights of transgender and other gender nonconforming people failed to come up for a vote in the New York State Senate. It died quietly years after Republicans and Democrats came together to vote in support of same sex marriage. Like most failed legislative efforts, there usually isn’t one clear-cut reason for its downfall. A myriad of forces were working against the bill: a coterie of Democrats aligned with Republicans, a lack of unity in the advocacy community and a wider political problem in how elected leaders perceive Americans’ opinions of transgender people.

Let’s start with the obvious: The bill wasn’t prioritized as same sex marriage efforts were, which is not a story only familiar to New York, but the whole country. Same sex marriage has been the central focus of major LGBT rights organizations for years, to the consternation of many LGBT rights activists, who believe issues that impact impoverished people, and/or people of color, have been neglected. After DOMA, one would think this would be the best time for activists to shine a light on other issues, such as hate crimes against LGBT people.

But that hasn’t proven to be the case, at least in New York.

Activists have differed in their approach to pushing the Gender Expression Non-Discrimination Act. The Empire State Pride Agenda released a radio ad that never used the word “transgender.” The segment started with a voice informing a transgender or gender nonconforming person that they would be evicted from their home. Then it begins:

“In a tough economy, New Yorkers hear bad news every day, but in New York State, you can be evicted from your home or even fired from your job just for being yourself. That’s right, even in 2013, it’s still legal to discriminate against New Yorkers because of their gender identity or expression. Sixteen other states already outlaw discrimination against Americans because of their gender expression or identity. And local governments, including Buffalo and Suffolk County, have fixed this injustice, but New York State has yet to act. To protect the rights of all New Yorkers, Albany must pass the (GENDA). New York has always been a beacon of civil rights and equality. It’s time to protect the civil rights of all New Yorkers. Tell Albany to pass the (GENDA).”

The radio ad was part of a $250,000 campaign by ESPA according to Jimmy Vielkind’s reporting in The Times Union, compared to the $1 million organizers said they would spend on lobbying for same sex marriage, according to Gannett’s Albany Bureau Chief, Joseph Spector. When I asked ESPA how much had been spent on the campaign overall, ESPA would not divulge the money spent in lobbying and advertising for either the GENDA campaign or lobbying for same sex marriage legislation, saying that the GENDA campaign is ongoing.

A video that is basically the same as the radio advertisement showed on local television stations as well, showing a map of the United States, and captions, but never mentioned the word “transgender” or showed any photos of actual transgender people or gender nonconforming people. Contrast that advertisement with an ESPA advertisement run in 2009 campaigning for same sex marriage rights, named “Barb & Don,” in which an older couple talks about their daughter’s wife and children. It is a heartbreaking ad because you see the people ESPA is fighting for. Photo after photo is shown of Amy and her wife and daughter. Both television ads lasted 30 seconds.

ESPA also chose to create a video portraying a trans woman and World War II veteran, Joanne. The video has been shown on ESPA’s social channels and at festivals. But it may have been easier for people to identify with Joanne than with than the clinical, less personal approach taken in the television ad: All of these other states are doing this. New York should too.

Ryan Sallans, a trans man who speaks as an activist on transgender issues, said there is hesitancy from leaders in major LGBT advocacy organizations to use the word “transgender,” pointing out that, historically, trans issues are pushed out of LGBT groups’ legislative agendas.

“The protections aren’t just protecting transgender people… It’s broader than that. It protects other gender non-traditional people, but looking at the statistics it’s mostly transgender people affected,” Sallans said.

“A lot of the time, people think, ‘Bring too much attention to the word and people will look away. Sometimes they drop gender ID from it [nondiscrimination bills] entirely.’ There are multiple factors—It has to do with money, education and transphobia within the LGBT community,” Sallans said.

Although 90% of Fortune 500 companies have policies prohibiting discrimination based on sexual orientation, only 57% have policies prohibiting discrimination based on gender identity. That is a majority but the difference between the number of companies with policies on sexual identity and sexual orientation is striking, and gives more weight to the importance of GENDA and the national ENDA legislation.

There has also been disagreement between ESPA and Human Rights Campaign as to how divided Democrats were on the bill, with ESPA stating Democrats were mostly unified.

“Democrats were actually overwhelmingly in agreement with passing GENDA, as are 78 percent of voters in New York State on both sides of the aisle…We believe strongly that GENDA is not a question of why, but rather when,” Nathan M. Schaefer, Empire State Pride Agenda Executive Director, said in a statement.

Fred Sainz, spokesman for HRC, released this statement, however:

“Despite passing the State Assembly easily, GENDA was not brought up for a vote by the State Senate due to political division between Democrats and the Independent Democratic Caucus (IDC), a small group of Democrats who have allied themselves with the Republicans in order to maintain control over the Senate. The Governor supports the bill but did not make GENDA part of his official legislative agenda.”

Melissa Sklarz, a longtime transgender activist and president of the Stonewall Democrats of New York City, who lobbied on behalf of the Human Rights Campaign, said the effort wasn’t as unified as it could be and lacked some of the necessary manpower. She also argues this kind of legislation had to take place in a nonelection year.

“I wish that the transgender community was more engaged in this. But we go to war with the people and the weapons we have… In nonelection years it’s easier. We will keep doing what we’ve been doing in an election year, but it’s difficult for a bill covering 300,000 New Yorkers in a state of 12 million people,” Sklarz said.

Skarlz said she, along with other lobbyists, would come to Albany every Tuesday to meet with legislators, especially those legislators who live in districts where fights against gender discrimination have already succeeded in those districts’ cities. Many of the Senators from those districts are Republicans, however, and only one of them, Mike Grisanti from Buffalo, voted for same sex marriage. Thomas F. O’Mara and Joseph Robach voted against and Thomas Libous co-sponsored legislation to render same sex marriage void.

I contacted members of the Independent Democratic Caucus, David Valesky, Diane Savino and Jeffrey Klein, for comment, but none of them responded within my deadline.

Sallans said that one of the most significant issues preventing the kind of engagement that is necessary for legislative victories from happening is the lack of transgender people in those organizations’ leadership.

“We need to focus on bringing our community together. When you have two different oppressed groups, often one oppressed group pushes down another so at least they’re further up the totem pole,” Sallans said. “[On finding transgender leaders] It would require the organization to show they’re trying to attract trans supporters and it would take recruiting within that community, to find qualified transgender people, because there are certainly enough qualified people.”

Lisa Mottet, the Transgender Civil Rights Project Director at National Gay and Lesbian Task Force, said it is a national embarrassment for New Yorkers, and especially for the governor, that he did not put his full weight behind the legislation.

“New Yorkers should be embarrassed. The governor should be embarrassed. The Independent Democratic Caucus should be embarrassed,” Mottet said. “Iowa, Colorado, and other states have taken this issue on and New York has ceded leadership,” adding that other governors, such as Maryland Governor, Martin O’Malley, have loudly championed the cause.

Mottet pointed to polls showing that Americans largely support legislation offering transgender people protection against discrimination in housing and at work.

“If people are worried about this legislation, they don’t understand the political dynamics in this country,” Mottet said.

Taking a national look, a poll commissioned by the admittedly left-leaning Center for American Progress found that 73 percent of voters supported protecting LGBT people from workplace discrimination.

A poll of 600 New York voters by Global Strategy Group found that 78 percent supported its passage. Seventy-nine percent of New York City residents, 82 percent of downstate suburban voters and 74 percent of Upstate New York voters supported it. Even 67 percent of Republicans and 78 percent of Independents polled supported the bill.

Avatar of Casey Quinlan

Casey Quinlan has written for the Daily News, The Atlantic, Minyanville and The Legislative Gazette. She has covered New York state politics, feminist issues and the financial world. She loves Mocha Chip ice cream. You can find her on twitter @caseyleigh2488

Casey has written 3 articles for us.

10 Comments

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    I had hoped (and still hope) that for some folks, marriage equality would be their “gateway” issue into the wider world of LGBTQ activism, the newbie-friendly opening through which they realized all the other urgent issues out there. Everyone has to start somewhere, right? And it was the first LGBTQ issue that I took political action on, ten years ago now, before I knew that I was queer.

    So where are all the new activists? The marriage equality movement has had one success after another. In the process of doing that, they must have created a lot of new activists, in New York as well as in other states. Where were they – as a group; I’m sure there were individuals out there – on this?

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    This is an amazingly well done article, the only other thing worth mentioning that I think you left out (or if you didn’t, I apologize, sometimes I’m bad at reading!) is that GENDA has passed the State Assembly multiple times in the past ten years, I want to say at least four or five, and every time it has gone to the Senate, it hasn’t even been taken up for a vote. It always dies languishing in a committee, because the Senate is simply too dysfunctional to even care about something as small time (to them) as GENDA.

    Also, as someone who’s from upstate New York, I have a lot of feelings about the IDC and Dave Valesky, but they mostly don’t have to do with my GENDA feelings, so I’ll keep those to myself.

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      Hi Zach,

      Yes, you’re right in that I should have included that information in the piece. Although I was focusing on where it went wrong, I should have given credit to the NYS Assembly for passing this many times before. That’s an important part of this, and why it makes the Senate’s failure to take up a vote so frustrating. I wish I could have received a comment from David Valesky as a born and raised Upstate New Yorker myself. Thanks for your compliment on the piece!

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    I’ve seen a fair number of people on Autostraddle who were under the delusion NY State already had trans protections, so thanks for the article! It’s also worth mentioning Maryland is, once again, trying to pass this for the umpteenth time and that Massachusetts has a highly defective law for trans protections which doesn’t include public accommodations… meaning homeless shelters, hospitals, athletic facilities, restaurants, store changing rooms and potentially even public transportation aren’t covered. As to NY State, I blame Andrew Cuomo big time for its failure and it’s hard not to roll my eyes when I hear queer people say with a straight face what a great friend he is to the ‘lgbtq’ community.

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    New York, I am disappoint.

    Like Jessie commented above, I too had hoped marriage equality would be a “gateway issue” that brings more people into the wider world of LGBT activism, but more and more I’m starting to doubt that. It’s very disappointing when people who go on and on about equality, fair treatment, and dignity for their group, but turn around and ignore the struggles of others. Especially when those other groups share some overlap.

    Dear humanity,

    Please do better.

    Love,
    a fan

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    In a lot of the LG…b…(t) organizations, there are some very problematic views held which enforce this very result, such as defensiveness about what they continue to do that harms other groups that they claim to represent, and viewing members of those other letter-groups as “too radical” for demanding equal footing.

    In my state, the biggest LGBT organization in the state has a person they go to as their authority on trans issues: a straight, cis woman who is a gender therapist and tends to gatekeep her clients. Last fall they even honored at their annual gala the state attorney general as the state’s “best promoter of LGBT equality” when, just three years earlier, that man single-handedly prevented trans people in the state from being able to have access to a state-issued ID that matched their gender (the state continues to require SRS to update the gender marker on a driver’s license.)

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    To paraphrase Mark Twain: The rumors of GENDA’s death are greatly exaggerated.

    While I can understand the shock value of referring to the bill as “dead,” that is a kind of “death” that refers solely to the bill’s chances of passage in a single legislative session.

    That being said, I appreciate the post-mortem coverage.

    GENDA spent several years from its initial introduction in 2003 before it even got a vote on the floor of the state Assembly. It has only gotten as far as an actual committee vote once in the State Senate.

    The bill may get knocked down, but I will not give up on it until it is passed.

    GENDA was originally drafted solely to create a level playing field on the basis of gender identity and expression under state human rights and hate crimes laws.

    There are other issues not addressed by GENDA at present. It was not designed to be as comprehensive as it should be – that is my fault.

    After 11 years, perhaps it is time to add more content to the bill. Issues ranging from medical treatment, medical insurance coverage for trans-related medical care, Medicaid, physician training, birth certificate correction and more, all could be included in an expanded bill – and I do not think it will be any more difficult to get an expanded bill enacted as it has been to get the simple “catch up with everyone else” bill.

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      Yes, it died for that legislative session only, but that doesn’t mean I think it’s hopeless. What I meant by using the phrase “quietly died” is that I don’t think there was as much attention given to the Senate’s not taking a vote on this legislation as there should have been. It seemed as if with same sex marriage, you knew there was a sense of shame about not having passed it yet, but with GENDA, politicians in Albany shook their shoulders.

      It would be great to see an expanded bill. Maybe New York takes longer to pass it but when it’s passed, it will be a better bill. Thanks for your comment and my apologies for the morbid language–It’s hard not to get cynical after following the Albany legislative process.

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    Casey, thank you so much for the article.

    I am one not surprised by Albany’ refusal to pass GENDA. In 2010 I was at a conference in Philadelphia where a grass roots, trans rights advocate spoke. She told the audience that New York has a reputation for being liberal and progressive because of the City,when in reality New York State legislators are slow and less progressive.

    Joanne is quite correct that borough to borough or county to county trans laws vary. My SO was born in Brooklyn and that borough will not change gender identity on birth certificates, yet other parts of New York allow change.

    The sad part of the story is New York’s trans people are well organized and active but until trans rights are tied to dollars or votes I doubt New York state will change their laws.

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