Advocates for transgender rights hit back hard on Friday after the State Senate’s Republican leader raised questions about the propriety of Governor Andrew Cuomo’s recent announcement that New York will treat discrimination based on gender identity and expression as discrimination based on sex and disability, areas already covered by the State Human Rights Law.
In a written statement, Nathan Schaefer, executive director of the Empire State Pride Agenda, termed comments made earlier in the day by Senator John Flanagan, a Long Island Republican, “breathtakingly tone-deaf,” while Senator Brad Hoylman, an out gay West Side Democrat, said his GOP colleague’s statement was “misguided.”
“My concern is that we have coequal branches of government,” Flanagan said, as reported by the Albany Times Union. “I’m not speaking one way or another on the issue. These issues should all be vetted in concert with the Legislature.”
In response, Hoylman, in a written statement, said, “Governor Cuomo was well within his executive powers to do so and I’m disappointed that the Republican leader of the Senate would question it, especially since the Republicans have repeatedly blocked the Gender Expression Nondiscrimination Act [GENDA], carried by Senator [Daniel] Squadron and Assemblymember [Dick] Gottfried.”
In announcing his decision about transgender rights at the October 22 Pride Agenda Manhattan fall gala, the governor, noting that the State Division of Human Rights has the statutory authority to interpret the Human Rights Law, said, “As governor of the State of New York, it is my opinion that in 2015 it is clear that the fair legal interpretation of the definition of a person’s sex includes gender identity and gender expression.”
The regulations the Human Rights Division will publish on November 4 and can take effect 45 days later will also spell out that discrimination based on “gender dysphoria” –– defined medically as having a gender identity different from the sex assigned at birth –– is discrimination based on disability, also a protected class under New York Human Rights law.
Schaefer, like Hoylman, noted Flanagan’s failure to act on GENDA in his rebuke of the Senate leader.
“John Flanagan’s criticism of Governor Andrew Cuomo for acting to protect transgender New Yorkers from discrimination is breathtakingly tone-deaf as Senator Flanagan himself left the trans community in the lurch only a few short months ago,” he said. “Senator Flanagan had a golden opportunity to bring the Gender Expression Non-Discrimination Act to a vote in the Senate this summer but instead he left transgender New Yorkers to face pervasive and often vicious discrimination without the same statewide rights every other New Yorker enjoys.”
Schaefer noted that GENDA has been in play for 13 years, ever since New York State enacted a gay rights law that provided no protections based on gender identity and expression. GENDA, which has passed repeatedly in the State Assembly since 2007, has only once received a committee hearing, in 2010 when the Democrats were in the majority. A unanimous bloc of Judiciary Committee Republicans were joined by Bronx Democratic Senator Ruben Diaz, Sr., in voting down the bill on that occasion.
Given the Republicans’ record on GENDA, it is difficult to credit Flanagan’s claim that he was “not speaking one way or another on the issue.” But Squadron was willing to call his bluff, saying, in a written release, “The governor is right and well within his executive authority to take action to prevent discrimination against transgender New Yorkers… If Majority Leader Flanagan is saying that, after years of blocking the Gender Expression Non-Discrimination Act, the Senate Majority is finally willing to send a message in support of basic civil rights and fairness for transgender New Yorkers, then I look forward to passage of GENDA, which I have long sponsored, on the Senate floor this session.”
Gay Men's Health Crisis also issued a strong rejoinder to Flanagan.
"Senator Flanagan needs to remember that he has been a part of the New York State Senate since 2002, and at no point has he taken leadership on protecting transgender New Yorkers, nor taken any action at all on GENDA," said Anthony Hayes, vice president of public affairs and policy. "Today, he said he believes that the Legislature 'can and should be included' in these types of 'deliberations, regardless of outcome.' Perhaps the senator has amnesia, because he was Senate Majority Leader last session, which gave him the power to bring GENDA to the floor for real deliberation and debate. He did not, even as the Assembly passed the bill for the eighth time."
Responding to Flanagan’s comments, Rich Azzopardi, a Cuomo spokesperson, said, “The governor exercised longstanding pre-existing executive authority to improve the lives of New Yorkers. He was proud to do so.”
The new Division of Human Rights regulations will offer transgender New Yorkers protection from discrimination in employment, housing, public accommodations, and access to credit.