What is the Gender Expression Non-Discrimination Act (GENDA)?
GENDA is a bill that adds the category of gender identity and expression to the already existing New York State human rights laws. The current law makes it illegal in New York State to discriminate on the basis of age, race, creed, color, national origin, sexual orientation, sex, marital status and other categories in the areas of employment, housing, public accommodations, education and credit. This bill also adds offenses regarding gender identity or expression to the list of offenses that are subject to treatment as hate crimes.
What is gender identity and expression and how does it differ from sex and sexual orientation?
Gender identity and expression refer to the way people self-identify and present their masculinity and/or femininity to the world. Often, but not always, this corresponds to the person’s sex as assigned at birth, so that a person born biologically male or female often dresses, adopts a hair style, and uses a name and pronoun in ways that reflect the culturally accepted roles associated with their birth sex.
Gender variant is a term that describes anyone who differs from conventional gender norms on a regular basis, such as tomboys and feminine men.
Transgender is an umbrella term used to designate a community of people who regularly present in a gender different from the sex assigned to them at birth and who live a significant part of their lives in that gender. This includes people who have undergone medical procedures to change their sex and those who have not.
Sexual orientation refers to one’s romantic and sexual attraction. Gender variance is not in itself any indicator of sexual orientation. Just like everyone else, gender variant and transgender people may be heterosexual, homosexual, bisexual, or asexual.
Why is this legislation necessary?
Through its Human Rights Law, New York State prohibits discrimination against groups of citizens who face widespread social hostility and unequal treatment. Unfortunately, people who present their masculinity and/or femininity in a way that differs from the stereotypical gender roles traditionally associated with their birth sex are not explicitly covered in statute, though there clearly is a need. There are many documented cases where social antagonism against gender variant (including transgender) individuals and their families, has led to many being denied and fired from a job, harassed in the workplace, faced with a “glass ceiling,” harassed and faced with eviction by their landlords, steered away from certain areas when looking for a home, denied rooms in a hotel, refused service in a restaurant, given inadequate medical care and otherwise treated as second-class citizens solely because of their gender identity and expression.
Isn’t discrimination based on gender variance already prohibited by the law?
No. Neither federal nor state statutes specifically ban discrimination based on gender identity and expression in employment, housing, public accommodations, credit or education. While at least two New York State courts have found local or state prohibitions on ‘sex,’ ‘gender,’ or ‘disability’ discrimination to apply to transgender people, those precedents do not necessarily apply to the full range of gender variance and are not binding on the entire state. Because sexual orientation and gender identity and expression are different, courts generally have not interpreted sexual orientation non-discrimination laws to include discrimination against transgender people.
Is there precedent for prohibiting discrimination based on gender identity and expression?
Yes, in both the public and private sector. Thirteen states and the District of Columbia have enacted similar non-discrimination laws: Colorado, California, Hawaii, Illinois, Iowa, Maine, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont and Washington. Over 90 localities across the United States have also passed local gender identity and expression non-discrimination laws, including New York localities like the City of Albany, City of Buffalo, City of Ithaca, New York City, City of Rochester, Rochester School District, Suffolk County and Tompkins County. A large and growing number of private employers have adopted their own policies of gender identity and expression non-discrimination. New York companies with such a policy include American Express, Bausch & Lomb, Citigroup, Deutsche Bank, Eastman Kodak, Goldman Sachs, IBM, J.P. Morgan Chase, Keyspan, Lehman Brothers, MetLife, The New York Times, PepsiCo, Xerox and Pfizer. The Office of the New York State Comptroller also has a policy prohibiting discrimination based on gender identity and expression.
Do New York’s elected officials support a law prohibiting gender identity and expression?
Fifty-five statewide and state legislative candidates, both Democrats and Republicans, endorsed by the Empire State Pride Agenda who won their races in the 2006 election cycle stated their support for a state human rights law to prohibit discrimination based on gender identity and expression in the areas of housing, public accommodations, credit, education and employment. GENDA legislation currently has, it had 72 Assembly and 17 Senate co-sponsors. Governor Spitzer has said publicly he will sign GENDA should the Legislature send it to him.
Would employers lose their ability to enforce dress codes or otherwise deal with disruptive behavior?
No. Employers would retain the right to enforce dress codes and require appropriate dress by employees, with the employee being required to dress according to the guidelines appropriate to the employee’s gender identity. Likewise, the law would not prevent businesses from firing transgender people who are not able to meet the requirements of their job.
Would the law require that all public bathrooms be unisex?
No. Since gender identity and expression non-discrimination laws have been interpreted as requiring only reasonable accommodation for gender variant employees, employers have already successfully dealt with the issue of restroom usage on an individual basis. There has never been a reported problem regarding the security of women’s restrooms in those jurisdictions in which similar laws have been adopted.
Would the law force owners of small and family-owned businesses to hire transgender people?
No. Nothing in the law would alter the exemption that already exists in the human rights law for small businesses with fewer than four employees.
Would the law apply to people renting out a room in their home?
No. The current human rights law exempts single family and owner-occupied two family homes. Nothing in this law would alter that exemption.
How would the law apply to religious groups?
Nothing in the law would alter the religious exemptions that already exist in the human rights law, nor would the law supersede a religious institution’s First Amendment right to hire and fire according to the tenets of its religion.
Wouldn’t the law give transgender people special rights or create a slippery slope towards banning discrimination based upon eye color, etc.?
No. As with the rest of the human rights law, all this law would do is mandate equal treatment and create an equal playing field. Identifying categories within human rights laws has been how state legislatures for decades have provided for equal treatment of other groups of citizens who are treated unequally. The historical experiences of gender variant and transgender individuals in New York State include social ostracism and legal marginalization. In fact, some transgender people face multiple oppressions based on race, ethnicity, and class as well as gender identity and expression.