My June 14, 2011 Letter to Dean Skelos on GENDA

The New York Transgender Rights Organization
Joann Prinzivalli, State Director


June 14, 2011

The Honorable Dean G. Skelos By FAX to 518-426-6950
Legislative Office Building, Room 909 Page 1 of pages
Albany, NY 12247
United States



Re: The Gender Expression Non-Discrimination Act (GENDA)
S 2873 (Duane, et al.)/A5039 (Gottfried, et al.)

Dear Senator Skelos:

The Gender Expression Non-Discrimination Act (GENDA) (S2873/A5039) just today passed in the Assembly for the fourth time.

I am writing to urge you to put this bill to the floor for a vote. I understand that you can put it through Rules and get it to the floor that way.

I am saddened by listening to some of the Assembly debate – some Republican assemblymembers have an understanding of the meaning of the bill to protect “a man who might one day decide he feels like a woman, and immediately start using the women’s restroom” or might in some way be used to protect sexual predators. I assure you that this bill would not provide any protection for a voyeur or any other male sexual predator who might want to wander into a women’s restroom or locker room.

When I wrote the first draft of the bill in December 2002 in the week after the Sexual Orientation Non-Discrimination Act was passed without an amendment to include language specifically protecting transgender people, I made sure I thoroughly researched the evolution of the language used in various local and state ordinances. I am annexing to this letter for your reference the result of that research.

The annexed research also provides a survey of local law enactments in New York State that cover transgender human rights: New York City has had such protections in place since 2002, and more primitive language was adopted in Suffolk County and the City of Rochester since 2001. While Westchester County had the first introduction in 1999, a fully trans-inclusive human rights ordinance was not adopted there until 2009.

The need for GENDA cannot be exaggerated. A recent national study shows that transgender people are seriously disadvantaged in areas of employment, housing, public accommodations, etc. This study, entitled Injustice at Every Turn can be found at:

http://www.thetaskforce.org/reports_and_research/ntds
and the full report iiself can be accessed at the following URL:

http://www.thetaskforce.org/downloads/reports/reports/ntds_full.pdf

I urge you to read this full report – it is an eye opener.

Then there are the economic costs of not passing GENDA. A Massachusetts study can be accessed at the Williams Institute website, www.law.ucla.edu/williamsinstitute. While it does not directly deal with New York, the adverse economic effects on New York State incurred by not passing GENDA are likely to be similar. I am sure that Senator Ball wants to do what he can to reduce costs and increasing revenue to the state without increasing taxes, and passing GENDA is actually one small way of doing that. (As an aside, the economic benefits of passing the marriage equality bill should not be underestimated. Millions of dollars are lost by new York State every year, with lesbian and gay couples opting to get married in Canada, Vermont, Massachusetts or Connecticut –and this actually adversely affects marriage-related businesses in New York State.)

While religious faith should not adversely impact human rights, I am terribly saddened by opposition to GENDA from New York State’s Roman Catholic bishops, and from the Rev. Duane Motley and his organizations, who apparently do not understand that sacred scripture includes Isaiah 56, Matthew 19:12, and Acts 8, all of which relate to transgender people.

However, GENDA would not adversely impact the Catholic Church or other churches, which would not have to ordain transgender people or solemnize marriages in which a transgender individual is a party. Existing human rights law has sufficient exemptions so that the Church can continue to discriminate on the basis of sexual orientation, and GENDA would not provide any greater coverage for transgender people than is provided to any other protected class.

The nature of transgender people is also misunderstood by many, including people like Rev. Motley. In 1965, a blue ribbon medical commission in New York City determined that transgender people are delusional members of their initially-assigned sex for whom any medical or surgical treatment is merely palliative. This is the kind of thinking that is at the root of much opposition –but it is as outdated as the geocentric cosmological theory or the classification of whales as fish.

Much has been learned in scientific studies between 1995 and the present. The current scientific understanding of transgender people is that we are developmentally different, and do not belong to that initially-assigned sex. There are genetic predispositions that have been found for the embryonic development in which the brain develops along one gendered path, while the genital ducts develop along the other. I am also annexing to this letter a survey of a number of scientific studies that reflect the recent developments in the understanding of transgender people.

I urge you to take the evidence I have provided into consideration and allow this bill top go to a vote – you have an opportunity to stand on the right side of history and favor justice, fairness and equality for all by moving this bill.

Sincerely,


Joann Prinzivalli
State Director’
New York Transgender Rights Organization

JP:ns
Encs
cc: Hon. State Senator Tom Duane
Eric Bottcher (by e-mail)
Christopher Argyros (by email)
Colin Casey (by email)


---



- RESOURCES -

A DISCUSSION OF THE LEGISLATIVE SOURCES FOR
DEFINITIONAL LANGUAGE USED IN
THE GENDER EXPRESSION NON-DISCRIMINATION ACT;
AND
A SURVEY OF LOCAL LAW ENACTMENTS IN NEW YORK STATE
THAT PROTECT TRANSGENDER PEOPLE

By Joann Prinzivalli, State Director, New York Transgender Rights Organization
You ask about the source for the term "Gender Identity and Expression" as used in GENDA (The Gender Expression Non-Discrimination Act):
Current bill number S 2873 (Duane, et al.)/A5039 (Gottfried, et al.)

The proposed definitional language for "gender identity and expression" is found in Section 3 of the bill, which reads as follows:

S 3.

Section 292 of the executive law is amended by adding a new subdivision 34 to read as follows:
34. THE TERM "GENDER IDENTITY OR EXPRESSION" MEANS HAVING OR BEING PERCEIVED AS HAVING A GENDER IDENTITY, SELF-IMAGE, APPEARANCE, BEHAVIOR OR EXPRESSION WHETHER OR NOT THAT GENDER IDENTITY, SELF-IMAGE, APPEAR ANCE, BEHAVIOR OR EXPRESSION IS DIFFERENT FROM THAT TRADITIONALLY ASSO CIATED WITH THE SEX ASSIGNED TO THAT PERSON AT BIRTH.


When I wrote the first draft of the GENDA bill in December 2002, I was cognizant of the language then proposed for a similar amendment to the New York City Human Rights Law, (Local Law 3 of 2002, passed as Intro 24 in April 2002), and I was aware of the history of the adoption of housing, employment and human rights laws that cover transgender and gender-different people since 1995. An excellent resource for this is "Transgender Equality," published by the National Center for Lesbian Rights (NCLR) available online at

http://www.nclrights.org/site/DocServer/transeq.pdf?docID=1302

(I must disclose that I am cited in footnote 74 in this resource.)

While working on the first GENDA draft in December 2002, I took the history of the development of human rights law language over the years very seriously. The fact that half the population of the state was already covered by a well-drafted and inclusive ordinance, made it fairly easy for me to choose the language adopted by new York City earlier that year.

In the 1980's, New York City changed its human rights law - the word "sex" was replaced by the word "gender." it is believed that this change may have been an early attempt to broaden the protected class, but all it did was make the definitions seem more vague. See, e.g., Maffei v. Kolaeton Industry, Inc. 164 Misc. 2d 547; 626 N.Y.S.2d 391 (Sup. Ct. N.Y. 1995), which broadly interpreted the change.


The language of the New York City Human Rights Law definition of gender as adopted in 2002, now includes "gender identity and expression:

23. The term “gender” shall include actual or perceived sex and shall also include a person’s gender identity, self-image, appearance, behavior or expression, whether or not that gender identity, self-image, appearance, behavior or expression is different from that traditionally associated with the legal sex assigned to that person at birth.

The New York City language was adapted from a statutory formula first adopted at the state level by the State of Rhode Island in 2001.

2001 - H 5920 Substitute A, amending Chapter 34-37 of the Rhode Island General Laws

34-37-2.3. Right to equal housing opportunities -- Gender identity or expression. -- Whenever in this chapter there shall appear the words "sexual orientation" there shall be inserted immediately thereafter the words "gender identity or expression."

34-37-3. Definitions -- When used in this chapter:
. . .
(17) The term "gender identity or expression" includes a person's actual or perceived gender, as well as a person's gender identity, gender-related self image, gender-related appearance, or gender-related expression; whether or not that gender identity, gender-related self image, gender-related appearance, or gender-related expression is different from that traditionally associated with the person's sex at birth.

Prior to the use of the formulation in Rhode Island, legislation to protect the human rights of transgender and gender-different people used various formulas. It was not until the 1990's that the term "transgender" began to be used to describe transsexual and other gender-different people. The earliest ordinance from 1975 was enacted in Minneapolis, Minnesota, and amended that City's human rights law definition of "affectional preference" (what we would today call "sexual orientation"), to include "having or projecting a self-image not associated with one’s biological maleness or one’s biological femaleness."

In 1986, Seattle used the terms "transsexuality and transvestism." In 1999, based on a recommendation from the City of Seattle Commission on Sexual Minorities recommended an amendment to make the law "more accurate, inclusive, and more easily administered."

The language adopted in Seattle may be the first use of language that was adopted at a statewide level in Rhode Island. The Seattle language defined: " ‘gender identity’ means having an identity, expression, or physical characteristics not traditionally associated with one’s biological sex or one’s sex at birth, including transsexual, transvestite and transgendered, and including a person’s attitudes, preferences, beliefs and practices pertaining thereto."

One can see that this Seattle language can be related back to that first Minneapolis enactment, which was the source of the use of the term "self-image" in current definitional formulae.

While there are other inclusive formulas out there, since the adoption of language similar to the Seattle or Rhode Island Language in New York City in 2002, all county and local ordinances adopted in New York State have followed the New York City formulation with slight variations.

The quickly put together but nearly comprehensive survey of the human rights ordinances adopted (and proposed) in counties and municipalities in New York State that follows, indicates that the definitional formula used in the New York City human rights law has held up in later statutory enactments. In the two or three cases that predate the New York City amended ordinance, different language was used. Items are presented in reverse chronological order:

(Possible) Pending legislation NOTE: (This may have been re-introduced for 2011):
Albany CountyLocal Law K of 2009
Introduced 11/9/2009
Section 3.11.
11. The term “gender” shall include actual or perceived sex and shall include a person's gender identity, self-image, appearance, behavior or expression, whether or not that gender identity, self-image, appearance, behavior or expression is different from that traditionally associated with the legal sex assigned to that person at birth.
(Note: My last information on this bill is that it was on the agenda of the Albany County Audit and Finance Committee for March 27, 2010

Laws already adopted:

Westchester County –
April 13, 2009, Human Rights Law amended by unanimous bipartisan vote 16-0;
April 2008 Fair Housing Law enacted

The Westchester County Human Rights Law as amended by Local Law 4 of 2009 on April 13, 2009, and the Westchester County Fair Housing Law adopted in 2008 (Local Law 4 of 2008), also use the identical definition, which in Westchester County is one of the sub-definitions of "gender" which is also defined as "the physiological or psychological characteristics

From the Westchester County Fair Housing Law (Local Law 4 of 2008)

L.L. No. 4-2008

Section 700.20 Definitions
. . .
G. Gender shall mean:
1. The physiological and psychological characteristics of being a male or female; and
2. Gender identity, self-image, appearance, behavior, or expression, whether or not such gender identity, self image, appearance, behavior or expression is different from that traditionally associated with the legal sex assigned to that person at birth.

The language from the Westchester human rights law:

700.02 Definitions.
. . .
9. Gender means:

a. The physiological and psychological characteristics of being a male or female; and

b. gender identity, self-image, appearance, behavior, or expression, whether or not such gender identity, self image, appearance, behavior or expression is different from that traditionally associated with the legal sex assigned to that person at birth.

2008
City of Binghamton Human Rights Law (Local Law 008-001 (adopted 12/15/2008),
Section 45-3(5):

45-3
. . .

5. "Gender Identity or expression" shall mean having a gender identity, self-image, appearance, behavior or expression whether or not that gender identity, self-image, appearance, behavior or expression is different from that traditionally associated with the sex assigned to that person at birth.


2006
Town of Rhinebeck (policy)
Employment Non-Discrimination policy adopted by Town Board of the Town of Rhinebeck, Decemebr 11, 2006, resolution increasing classifications covered under Rhinebeck’s non-discrimination policy to include “gender-identity or expression” and“ sexual orientation”
§902 of the Employee Handbook was amended to include:

d. The term “Gender Identity or Expression” shall mean having or being perceived as having a gender identity, self-image, appearance, behavior or expression, whether or not that gender identity, self image, appearance, behavior or expression is different from that traditionally associated with the sex associated with that person at birth.”

duly passed by 5-0 vote of the Town Board at a regular meeting held on December 11, 2006.

2004
Tompkins County
Tompkins County, Chapter 92, Anti-Discrimination Local Law No. 6-1991, as amended by Local Law No. 1-2004 Chapter 92 of the Laws of Tompkins County § 92-3 - vote of 11 to 4

§ 92-3

GENDER IDENTITY AND EXPRESSION
A person's actual or perceived gender identity, gender-related self-image, gender-related appearance, gender-related behavioral or physical characteristics, or gender-related expression, whether or not that gender identity, gender-related self-image, gender-related appearance, gender-related behavioral or physical characteristics, or gender-related expression is different from that traditionally associated with the person's sex assigned at birth. This shall include but not be limited to:
A. Transsexuals in all stages of transition, including preoperative, postoperative and persons living in a gender other than their birth sex;
B. Persons (including cross-dressers) whose gender expression occasionally differs from their birth sex; and
C. Intersexed persons born with anatomy or physiology that includes medical characteristics of both male and female whose sex was assigned at birth and who sometimes manifest physical characteristics, expressions or identity that differs from the sex assigned.

2003
City of Ithaca
Adopted July 9, 2003

§ 215-2. Definitions
When used in this article:
. . .
11. The term “gender” shall include actual or perceived sex and shall also include a
person’s gender identity, self-image, appearance, behavior, or expression, whether or
not that gender identity, self-image, appearance, behavior or expression is different
from that traditionally associated with the legal sex assigned to that person at birth.


2002 (for Anti-Discrimination Law, and 2006 for Fair Housing)
City of Buffalo
Part II Chapter 154 of the City Code of the City of Buffalo

Article III Antidiscrimination Law
[Adopted 9-21-1999, effective 10-4-1999; amended in its entirety 9-17-2002, effective 9-30-2002]

§ 154-9. Definitions
. . .
GENDER IDENTITY AND EXPRESSION
Includes a person's actual or perceived gender, as well as a person's gender identity, self-image, appearance, expression or behavior, whether or not that gender identity, self-image, appearance, expression or behavior is different from that traditionally associated with the person's sex at birth.

Article IV Fair Housing Law
[Adopted 5-2-2006, effective 5-17-2006]

§ 154-13 Definitions
. . .
GENDER IDENTITY AND EXPRESSION
Include a person's actual or perceived gender, as well as a person's gender identity, self-image, appearance, expression or behavior, whether or not that gender identity, self-image, appearance, expression or behavior is different from that traditionally associated with the person's sex at birth.

New York City
Intro 24 of 2002, passed in April 2002, amended subsection 23 of the Definitions section of the New York City Human Rights Law, and was the first use in New York State of "gender identity and expression” and the definition used was similar to that first used in the State of Rhode Island in 2001:

§ 8-102 Definitions. When used in this chapter:
23. The term “gender” shall include actual or perceived sex and shall also include a person’s gender identity, self-image, appearance, behavior or expression, whether or not that gender identity, self-image, appearance, behavior or expression is different from that traditionally associated with the legal sex assigned to that person at birth.


Earlier enactments:

2001
Suffolk County
§ 89-13 of Suffolk County's Local Law No. 14-2001

RESOLUTION NO. 802 - 2001, ADOPTING LOCAL LAW NO. 14 - 2001, A LOCAL LAW TO STRENGTHEN AND IMPLEMENT APPLICATION OF COUNTY HUMAN RIGHTS LAW TO PUBLIC ACCOMMODATIONS, EMPLOYMENT AND HOUSING

Section 2. Definitions.
G.) The term “gender” shall mean both the biological and social characteristics of being female or male.

Adopted August 18, 2001; Approved by Suffolk County Executibve Robert J. Gaffney September 20, 2001(after a public hearing Sept. 10, 2001); Filed with the Secretary of State on October 5, 2001 (Effective Date)

City of Rochester
General Ordinances of the City of Rochester
§ 63-2 Definitions
Adopted May 15, 2001 by Ordinance No. 2001-131

GENDER
Includes the biological and/or social characteristics of gender and gender identity.


1999
Westchester County
Human Rights law proposed that defined gender as “the biological or social characteristics of being female or male.” At the time of enactment, the definition (later amended in 2009 to clarify the definition) defined gender as “the biological characteristics of being male or female.” The statute also had a provision that included protection on the basis of “actual or perceived” membership in a protected class. On this basis, I wrote an article published in the LOFT Community News in 2000, in which I advocated that the term “biological” should be construed as meaning “physiological or psychological” and this interpretation was used by the Westchester County Human Rights Commission in accepting jurisdiction of human rights complaints from transgender people.


NOTES ON THE SCIENCE:

Here is what some of the science tells me:

In 1995, in a peer-reviewed article in Nature, entitled A sex difference in the human brain and its relation to transsexuality [Nature 378, 68 - 70 (02 November 1995); doi:10.1038/378068a0] the researchers involved gave us a first glimmer into transsexual brain structures.

This was confirmed in a follow-up study in 2000, entitled Male-to-Female Transsexuals Have Female Neuron Numbers in a Limbic Nucleus, published in The Journal of Clinical Endocrinology & Metabolism Vol. 85, No. 5 2034-2041

..

In 2008, two separate studies from Australia established separate genetic predispositions for different kinds of transgender development.

In one study, the predisposition for those who develop with female-identified brains and male genital tracts was shown to involve a long androgen receptor gene:

Lauren Hare, Pascal Bernard, Francisco J. Sanchez, Paul N. Baird, Eric Vilain, Trudy Kennedy and Vincent R. Harley. Androgen Receptor (AR) Repeat Length Polymorphism Associated with Male-to-female Transsexualism. Biological Psychiatry, Advance online publication date 27 Oct 2008, Jan 2009 print edition

The other study,aimed at those who develop with male-identified brains and female genital tract development, was entitled A Polymorphism of the CYP17 Gene Related to Sex Steroid Metabolism is Associated With Female-to-Male But Not Male-to-Female Transsexualism by Bentz, Eva-Katrin; Hefler, Lukas A.; Kaufmann, Ulrike; Huber, Johannes C.; Kolbus, Andrea; Tempfer, Clemens B., published in Obstetrical & Gynecological Survey: December 2008 - Volume 63 - Issue 12 - pp 775-777
doi: 10.1097/01.ogx.0000338093.21452.0b

These studies, and the brain structure studies from 1995 and 2000, provide clues to the ontological developments that result in transgender people. While there is much additional study required, these studies make it possible to discredit the earlier understandings of transgender people that date back to 1965, in which transgender people were seen as merely delusional members of their initially-assigned sex, for whom any treatment is seen as merely palliative.

- excerpted from my blog essay at:
http://trans-cendence.blogspot.com/2011/04/e-pur-si-muove-response-to-keith.html

A further list of scientific resources (which includes references to two of the above studies (in italics) (courtesy of Zoe Brain):

Male-to-female transsexuals show sex-atypical hypothalamus activation when smelling odorous steroids. by Berglund et al Cerebral Cortex 2008 18(8):1900-1908;

Male–to–female transsexuals have female neuron numbers in a limbic nucleus. Kruiver et al J Clin Endocrinol Metab (2000) 85:2034–2041

Sexual differentiation of the human brain: relevance for gender identity, transsexualism and sexual orientation. Swaab Gynecol Endocrinol (2004) 19:301–312.

A sex difference in the human brain and its relation to transsexuality. by Zhou et al Nature (1995) 378:68–70.

A sex difference in the hypothalamic uncinate nucleus: relationship to gender identity. by Garcia-Falgueras et al Brain. 2008 Dec;131(Pt 12):3132-46.

White matter microstructure in female to male transsexuals before cross-sex hormonal treatment. A diffusion tensor imaging study. - Rametti et al, J Psychiatr Res. 2010 Jun 8.

Sexual Hormones and the Brain: An Essential Alliance for Sexual Identity and Sexual Orientation Garcia-Falgueras A, Swaab DF Endocr Dev. 2010;17:22-35

Male Gender Identity in Complete Androgen Insensitivity Syndrome by T'sjoen et al. Arch Sex Behav. 2010 Apr 1.

Biological and Psychosocial Correlates of Adult Gender?Variant Identities: a Review by J.F.Veale & D.E.Clarke, Personality and Individual Differences (2009) 48(4), 357-366

Sexual differentiation of the human brain in relation to gender identity and sexual orientation D.Swaab & A.Garcia-Fulgaras Functional Neurology, Jan-Mar 2009:

Neuroimaging Differences in Spatial Cognition between Men and Male-to-Female Transsexuals Before and During Hormone Therapy by Scoening et al J Sex Med. 2009 Sep 14.

Regional gray matter variation in male-to-female transsexualism. by Luders et al Neuroimage. 2009 Jul 15;46(4):904-7.

Clinical Implications of the Organizational and Activational Effects of Hormones M.Diamond Hormones and Behavior 55 (2009) 621–632

Dichotic Listening, Handedness, Brain Organization and Transsexuality Govier et al International Journal of Transgenderism, 12:144–154, 2010

Specific Cerebral Activation due to Visual Erotic Stimuli in Male-to-Female Transsexuals Compared with Male and Female Controls: An fMRI Study by Gizewski et al J Sex Med 2009;6:440–448.