Nuances from last night's New York Marriage vote

The "Rev." State Senator Ruben Diaz, Sr.

I don't know how many people noticed it, but the "Rev." State Senator Ruben Diaz, Sr., a pentacostalist minister who admits to having become "one flesh" with a second wife while his first wife is still alive, and admitted in an interview this week that it was wrong to do this, did his best last night to try to derail the well-organized procedure for the marriage vote in the State Senate.

It wasn't just the length of his comments, which went well over the stipulated two minutes. (To be sure, Senator Duane and others also exceeded two minutes in their own comments).  But in his halting English, he kept insisting that he was "laying aside the bill." He became agitated, and repeated several times that he was getting no respect, that he had said to "lay aside the bill."  He said he had a right to "lay aside the bill."

What Diaz did not seem to understand, was:

(a) he was recognized solely for the purpose of explaining his vote on the bill" - and

(b) that there had been a bit of ledgerdemain when the amendment and the bill were first taken up, that precluded Senator Diaz being able to lay the bill aside (i.e., put it off until later).

Last night's women's discussion group at my local LGBT center trooped into The LOFT's library rather than meet.  We were watching the internet livestream feed on a large monitor, hoping it wouldn't crash (it didn't), but wen the Assembly bills were first taken up, we noticed that they were being laid aside.  At first, some thought that meant that the bills were not going to get a vote, but without missing a beat, the president of the Senate continued with the repartee with majority leader skelos about there being a message from the governor at the desk, for each bill.

After having each been laid aside, the bills were then taken up on the basis of the governor's message of necessity - first the amendment, and then the main bill (the reverse of the order they had been taken up in the Assembly).

So, when Diaz tried to lay the bill aside, he couldn't, because the bills had already been laid aside once, and because he had not been recognized for the purpose of laying a bill aside but for explaining his vote.

It turns out that Diaz is as poor in his senate procedural rules as he is on interpreting the bible, or in his command of the English language.  As to the last, I hope he is more proficient in Spanish, even if I don't understand a word of it.

As to his feeling of not being respected, I am sure that he is going to repeat that - he was trying to use every trick he knew to keep the bill from being considered.

Then in the other things he said, he chastized the Republicans for not all marching in lock-step (something he, as a Democrat, has always had a hard time doing).  He complained that the Republicans were responsible for letting the bill go to a vote.

On that last point, I think is was not grounds for complaint, but for admiration, despite the fact that nearly all of them disapproved of the purpose of the bill.

As one of them pointed out, had they not let the bill go to a vote then, it would have come up in a couple of years, and when it came up again, it would not have all the "religious protections" they were able to build into it.

Before the final language came out yesterday, I was quite frankly worried that the poison pill provisions were going to be wayy more onorous than they were.  I grant that the in terrorem clause (the one that invalidates the whole law in the event one provision is set aside by a court) was way over the top, but not totally unexpected.

Essentially, on the issue of marriage, the proponents and opponents are so polarized, that no one on either side trusts the motivations of the "other side."  We are fond of demonizing each other. 

Diaz showed that he was possibly the only member of the Senate not willing to lay that aside in the chamber and move forward.

Unlike the advocates on both sides, like me, who operate outside the chamber, the senators have the responsibility of actually making the law, despite their sometimes almost insurmountable differences.

Some senators, mostly Democrats, were justly pushing for the extension of the connubium of marriage on a gender neutral basis.

Other Senators, mostly Republicans, were justly (and with the bill safely passed, I can state this) trying to protect their religious institutions from what they perceived as an assault that goes against their most deeply-held religious views.

Frankly, I do believe the Republican majority is well aware of the fact that 2012 may be the last time they have a majority in the near future, so they set out to get the best deal they could get, to protect the mostly religion-based interests of the opponents,knowing that in 2013, a democratic majority senate could pass marriage without all the bells and whistles that were written into this bill.

I don't really think the bells and whistles were wholly necessary, though I can understand the fears that led to their adoption.

While I really do see the concerns of the opponents to be rooted in bigotry and prejudice, I can admire the way a few of the Republicans were able to negotiate a deal with the Governor to work a way to get the bill passed in a way that could reasonably protect the religious prejudice without harming the legal rights of the proponents.  I also have to admire the willingness of  most of the 28 Republicans who voted no on the main bill, to allow it to go to a vote.  I only wish that they would have used the amendment that was voted on first, to signal who they were - that they were among the at least 17 in the majority conference that were needed to let the bill get the vote.

And that is the truth.  If there were not 17 members of the majority who understood that there were enough votes for the bill to pass, and were at least comfortable with, if not fully satisfied by the "religious protections" that had been negotiated (what I still tend to call a poison pill even though it did not turn out to be fatal"), there would have been no vote last night.

Last night's vote was the result of the democratic process at work - not a perfect bill for either side, but one that gave each the things that they needed the most.

A victory for "our side," and, though they may not want to admit it openly, a victory for "them," too.

Diaz, though, made it clear that he was not part of any solution, only part of the problem.

Like Archbishop Dolan, he will not acknowledge the victory that the opponents won on religious protections.

State Senator Greg Ball

Senator Greg Ball wanted more of a poison pill.  And to be honest, I don't know if he was willing to let it go to a vote as it was.  His principal role in the past couple of days was to signal to me that the poison pill provisions were not going to be fatal, when he announced his NO vote in advance. 

Senator Tom Duane, who in the moment of victory took the time to call for passage of GENDA next, was gracious - he chivalrously referred to all of his colleagues as heroes for their work in the process, even those who voted agaisnt the bill, even Diaz.

So, the marriage canary tells me that the only hope for GENDA next year would be if there is something the Republicans feel a need to do to protect some legitimate constituency of theirs.  Sadly, the way the opposition to GENDA is shaping up, I don't think there is anything that we can offer in compromise.  All we want is the same protection that has been provided to other minorities under the hate crimes and human rights laws.

The trans community has to organize and lead the charge for GENDA.  I am hopeful that we will not be forgotten by the marriage people, but many of them will be moving on to other states and to federal issues,  Some, however, will do everything they can to help us out - but we have to find a way to take the lead.

The latest draft of the amendments to the Assembly bill - PASSES!

The canary is not dead, just a little sick:

S T A T E O F N E W Y O R K

8520

2011-2012 Regular Sessions

I N ASSEMBLY

June 24, 2011

Introduced by M. of A. O'DONNELL -- (at request of the Governor) -- read


once and referred to the Committee on Judiciary


AN ACT to amend the domestic relations law, in relation to the ability


to marry; and to amend a chapter of the laws of 2011, amending the


domestic relations law relating to the ability to marry, as proposed


in legislative bill number A. 8354, in relation to the statutory


construction of such chapter; and repealing certain provisions of the


domestic relations law relating to parties to a marriage


THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM


BLY, DO ENACT AS FOLLOWS:






Section 1.






Section 10-b of the domestic relations law, as added by a


chapter of the laws of 2011, amending the domestic relations law relat


ing to the ability to marry, as proposed in legislative bill number A.


8354, is REPEALED and a new section 10-b is added to read as follows:






S 10-B. RELIGIOUS EXCEPTION. 1. NOTWITHSTANDING ANY OTHER PROVISION OF STATE, LOCAL OR MUNICIPAL LAW, RULE, REGULATION, ORDINANCE, OR OTHER PROVISION OF LAW TO THE CONTRARY, A RELIGIOUS ENTITY AS DEFINED UNDER THE EDUCATION LAW OR SECTION TWO OF THE RELIGIOUS CORPORATIONS LAW, OR A CORPORATION INCORPORATED UNDER THE BENEVOLENT ORDERS LAW OR DESCRIBED IN THE BENEVOLENT ORDERS LAW BUT FORMED UNDER ANY OTHER LAW OF THIS STATE, OR A NOT-FOR-PROFIT CORPORATION OPERATED, SUPERVISED, OR CONTROLLED BY A RELIGIOUS CORPORATION, OR ANY EMPLOYEE THEREOF, BEING MANAGED, DIRECTED, OR SUPERVISED BY OR IN CONJUNCTION WITH A RELIGIOUS CORPORATION, BENEVOLENT ORDER, OR A NOT-FOR-PROFIT CORPORATION AS DESCRIBED IN THIS SUBDIVISION, SHALL BE DEEMED TO BE IN ITS NATURE DISTINCTLY PRIVATE AND THEREFORE  SHALL NOT BE REQUIRED TO PROVIDE SERVICES, ACCOMMODATIONS, ADVANTAGES, FACILITIES, GOODS, OR PRIVILEGES FOR RELATED TO THE SOLEMNIZATION OR CELEBRATION OF A MARRIAGE.  2. A ANY SUCH REFUSAL BY A BENEVOLENT ORGANIZATION OR A RELIGIOUS CORPORATION, INCORPORATED UNDER THE EDUCATION LAW OR THE RELIGIOUS CORPORATIONS LAW, TO PROVIDE SERVICES, ACCOMMODATIONS, ADVANTAGES, FACILITIES, GOODS, OR PRIVILEGES IN CONNECTION WITH SECTION TEN-A OF THIS ARTICLE SHALL NOT CREATE ANY CIVIL CLAIM OR CAUSE OF ACTION OR RESULT IN ANY STATE OR LOCAL GOVERNMENT ACTION TO PENALIZE, WITHHOLD BENEFITS, OR DISCRIMINATE AGAINST SUCH RELIGIOUS CORPORATION, BENEVOLENT ORDER, A NOT-FOR-PROFIT CORPORATION OPERATED, SUPERVISED, OR CONTROLLED BY A RELIGIOUS CORPORATION, OR ANY EMPLOYEE THEREOF BEING MANAGED, DIRECTED, OR SUPERVISED BY OR IN CONJUNCTION WITH A RELIGIOUS CORPORATION, BENEVOLENT ORDER, OR A NOT-FOR-PROFIT CORPORATION.






2. 3. PURSUANT TO SUBDIVISION ELEVEN OF SECTION TWO HUNDRED NINETY-SIX OF THE EXECUTIVE LAW,  NOTWITHSTANDING ANY STATE, LOCAL OR MUNICIPAL LAW OR RULE, REGULATION, ORDINANCE, OR OTHER PROVISION OF LAW TO THE CONTRARY, NOTHING IN THIS ARTICLE SHALL LIMIT OR DIMINISH THE RIGHT, PURSUANT TO SUBDIVISION ELEVEN OF SECTION TWO HUNDRED NINETY-SIX OF THE EXECUTIVE LAW, OF SHALL BE DEEMED OR CONSTRUED TO PROHIBIT  ANY RELIGIOUS OR DENOMINATIONAL INSTITUTION OR ORGANIZATION, OR ANY ORGANIZATION OPERATED FOR CHARITABLE OR EDUCATIONAL PURPOSES, WHICH IS OPERATED, SUPERVISED OR CONTROLLED BY OR IN CONNECTION WITH A RELIGIOUS ORGANIZATION, TO LIMIT FROM LIMITING   EMPLOYMENT OR SALES OR RENTAL OF HOUSING ACCOMMODATIONS OR ADMISSION TO OR GIVE PREFERENCE TO PERSONS OF THE SAME RELIGION OR DENOMINATION OR FROM TAKING SUCH ACTION AS IS CALCULATED BY SUCH ORGANIZATION TO PROMOTE THE RELIGIOUS PRINCIPLES FOR WHICH IT IS ESTABLISHED OR MAINTAINED.






3. NOTHING IN THIS SECTION SHALL BE DEEMED OR CONSTRUED TO LIMIT THE PROTECTIONS AND EXEMPTIONS OTHERWISE PROVIDED TO RELIGIOUS ORGANIZATIONS UNDER SECTION THREE OF ARTICLE ONE OF THE CONSTITUTION OF THE STATE OF NEW YORK.






S 2. Subdivision 1-a of section 11 of the domestic relations law, as added by a chapter of the laws of 2011, amending the domestic relations law relating to the ability to marry, as proposed in legislative bill number A.8354, is amended to read as follows:






1-a. A refusal by a clergyman or minister as defined in section two of the religious corporations law, or Society for Ethical Culture leader to solemnize any marriage under this subdivision shall not create a civil claim or cause of action OR RESULT IN ANY STATE OR LOCAL GOVERNMENT ACTION TO PENALIZE, WITHHOLD BENEFITS OR DISCRIMINATE AGAINST SUCH CLERGYMAN OR MINISTER.






S 3. A chapter of the laws of 2011, amending the domestic relations law relating to the ability to marry, as proposed in legislative bill number A. 8354, is amended by adding a new section 5-a to read as follows:






S 5-A. THIS ACT IS TO BE CONSTRUED AS A WHOLE, AND ALL PARTS OF IT ARE TO BE READ AND CONSTRUED TOGETHER. IF ANY PART OF THIS ACT SHALL BE ADJUDGED BY ANY COURT OF COMPETENT JURISDICTION TO BE INVALID, THE REMAINDER OF THIS ACT SHALL BE INVALIDATED. NOTHING HEREIN SHALL BE CONSTRUED TO AFFECT THE PARTIES' RIGHT TO APPEAL THE MATTER.






S 4. This act shall take effect on the same date as such chapter of the laws of 2011, takes effect.




The bottom line?  It's really not a lot worse than it was before - and to boot, all it really does is extend to marriage a number of the religious exemptions that were included in SONDA, just with a lot more teeth to make sure there are no challenges.

The in terrorem clause, threatening to invalidate the whole law if any part of it is successfully challenged, is a particularly interesting touch - it might have been added at the suggestion of a GOP senator with a trusts and estates practice, familiar with the value of simmilar in terrorem clauses in the drafting of wills.

While I might feel a little queasy that the Republicans felt necessary to throw all this in, I think that if and when this passes in both Assembly (and perhaps a single bill incorporating all the changes in the Senate), it should be time for a minor and muted celebration.  They're not doing anything with GENDA.

But if they do want similar "religious protections" in GENDA, I guess I will have to take a close look at them - as long as they apply acoss the board, as these seem to, then it should be fine.

So, if a religion does not want to perform interracial marriages or the local Masonic Lodge does not want to allow an interracial couple to have their wedding reception at their hall, this bill will protect the Masons, and not a thing can be done about that.

UPDATE: The amendment passed in the Assembly first, and then the Senate first passed the Amendment, and then the underying bill.  ha maon bill passed 33-29 - with one vote more than the 32 needed for passage.  Upstate Senatr Grisanti was vite #33 - and his explanation of his vote was nearly as well received at The LOFT as Senator Duane's emotional and stirring words.

I cannot help but be pleased that marriage has passed - it's as close to equality as one could reasonably expect, given the power and influence of the Roman Catholic Church. 

In the final analysis, the opponents got what they really felt they needed - keeping weddings that don't want out of their churches and affiliated organization reception halls - and the proponents got the word maddiage and civil equality, at least  outside those churches and affiliated organizations.

Cassandra reads the tea leaves: NY Marriage bill may be a canary for GENDA strategy

The canary, a songbird species, was used as recently as 1987 in the coal mining industry to warn miners of the danger of toxic gas buildup.  It's not that the canaries were trained to sing out a warning, but rather, they would succumb to the toxic gases before human miners could - and the cessation of the chirping would also provide an audible indication that something could be amiss.

The three ring circus in the closing days of the 2011 New York legislative session, with controversy swirling around the extension of rent control, the imposition of a 2% cap on school tax increases, and the marriage "equality" bill, is providing advocates for GENDA (The Gender Expression Non-Discrimination Act) a foretaste of what the scenario might be for the 2012 session, if GENDA were to be taken up by the Republican-controlled state senate.

There were two marriage bills considered by the Assembly, both of them chiefly sponsored by Assemblymember Danny O'Donnell, who, like his celebrity sister Rosie, is openly gay.

In this blog essay, I am going to set both of them out and analyze the evolution of the "poison pill" up to last week.

Hereis the original bill, A7600:

S T A T E O F N E W Y O R K

7600

2011-2012 Regular Sessions

I N ASSEMBLY

May 10, 2011

Introduced by M. of A. O'DONNELL -- read once and referred to the Committee on Judiciary


AN ACT to amend the domestic relations law, in relation to the ability to marry


THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:


Section 1. Legislative intent. Marriage is a fundamental human right. Same-sex couples and their children should have the same access as others to the protections, responsibilities, rights, obligations, and benefits of civil marriage. Stable family relationships help build a stronger society. For the welfare of the community and in fairness to all New Yorkers, this act formally recognizes otherwise-valid marriages without regard to whether the parties are of the same or different sex. It is the intent of the legislature that the marriages of same-sex and different-sex couples be treated equally in all respects under the law. The omission from this act of changes to other provisions of law shall not be construed as a legislative intent to preserve any legal distinction between same-sex couples and different-sex couples with respect to marriage. The legislature intends that all provisions of law which utilize gender-specific terms in reference to the parties to a marriage, or which in any other way may be inconsistent with this act, be construed in a gender-neutral manner or in any way necessary to effectuate the intent of this act.


S 2. The domestic relations law is amended by adding a new section 10-a to read as follows:


S 10-A. SEX OF PARTIES. 1. A MARRIAGE THAT IS OTHERWISE VALID SHALL BE VALID REGARDLESS OF WHETHER THE PARTIES TO THE MARRIAGE ARE OF THE SAME OR DIFFERENT SEX.


2. NO GOVERNMENT TREATMENT OR LEGAL STATUS, EFFECT, RIGHT, BENEFIT, PRIVILEGE, PROTECTION OR RESPONSIBILITY RELATING TO MARRIAGE, WHETHER
DERIVING FROM STATUTE, ADMINISTRATIVE OR COURT RULE, PUBLIC POLICY, COMMON LAW OR ANY OTHER SOURCE OF LAW, SHALL DIFFER BASED ON THE PARTIES TO THE MARRIAGE BEING OR HAVING BEEN OF THE SAME SEX RATHER THAN A DIFFERENT SEX. WHEN NECESSARY TO IMPLEMENT THE RIGHTS AND RESPONSIBILITIES OF SPOUSES UNDER THE LAW, ALL GENDER-SPECIFIC LANGUAGE OR TERMS SHALL BE CONSTRUED IN A GENDER-NEUTRAL MANNER IN ALL SUCH SOURCES OF LAW.


S 3. Section 13 of the domestic relations law, as amended by chapter 720 of the laws of 1957, is amended to read as follows:


S 13. Marriage licenses. It shall be necessary for all persons intended to be married in New York state to obtain a marriage license from a town or city clerk in New York state and to deliver said license, within sixty days, to the clergyman or magistrate who is to officiate before the marriage ceremony may be performed. In case of a marriage contracted pursuant to subdivision four of section eleven of this chapter, such license shall be delivered to the judge of the court of record before whom the acknowledgment is to be taken. If either party to the marriage resides upon an island located not less than twenty-five miles from the office or residence of the town clerk of the town of which such island is a part, and if such office or residence is not on such island such license may be obtained from any justice of the peace residing on such island, and such justice, in respect to powers and duties relating to marriage licenses, shall be subject to the provisions of this article governing town clerks and shall file all statements or affidavits received by him while acting under the provisions of this section with the town clerk of such town. NO APPLICATION FOR A MARRIAGE LICENSE SHALL BE DENIED ON THE GROUND THAT THE PARTIES ARE OF THE SAME, OR A DIFFERENT, SEX.


S 4. Subdivision 1 of section 11 of the domestic relations law, as amended by chapter 319 of the laws of 1959, is amended to read as follows:


1. A clergyman or minister of any religion, or by the senior leader, or any of the other leaders, of The Society for Ethical Culture in the city of New York, having its principal office in the borough of Manhattan, or by the leader of The Brooklyn Society for Ethical Culture, having its principal office in the borough of Brooklyn of the city of New York, or of the Westchester Ethical Society, having its principal office in Westchester county, or of the Ethical Culture Society of Long Island, having its principal office in Nassau county, or of the Riverdale-Yonkers Ethical Society having its principal office in Bronx county, or by the leader of any other Ethical Culture Society affiliated with the American Ethical Union; PROVIDED THAT NO CLERGYMAN, MINISTER OR SOCIETY FOR ETHICAL CULTURE LEADER SHALL BE REQUIRED TO SOLEMNIZE ANY MARRIAGE WHEN ACTING IN HIS OR HER CAPACITY UNDER THIS SUBDIVISION.


S 5. This act shall take effect immediately.


Now, let's take a look at the bill introduced by Assemblymember O'Donnell, at the request of Governor Andrew Cuomo, who is reported to have had discussions with at least some Republican leaders before hammering out some "poison pill" language for the bill  I am going to enbolden the differences, or at least the ones I find:

 S T A T E O F N E W Y O R K

8354

2011-2012 Regular Sessions

IN ASSEMBLY

June 14, 2011

Introduced by M. of A. O'DONNELL, GOTTFRIED, GLICK, TITONE, KELLNER, BRONSON, J. RIVERA, SILVER, FARRELL, SAYWARD, LENTOL, NOLAN, WEISEN BERG, ARROYO, BRENNAN, DINOWITZ, HOYT, LIFTON, MILLMAN, CAHILL, PAULIN, REILLY, BING, JEFFRIES, JAFFEE, ROSENTHAL, KAVANAGH, DenDEKKER, SCHIMEL, HEVESI, BENEDETTO, SCHROEDER, J. MILLER, LAVINE, LANCMAN, LINARES, MOYA, ROBERTS, SIMOTAS, ABINANTI, BRAUNSTEIN -- Multi-Sponsored by -- M. of A. AUBRY, BOYLAND, BROOK-KRASNY, CANESTRARI, COOK, DUPREY, ENGLEBRIGHT, LATIMER, V. LOPEZ, LUPARDO, MAGNARELLI, McENENY, MORELLE, ORTIZ, PRETLOW, RAMOS, N. RIVERA, P. RIVERA, RODRIGUEZ, RUSSELL, SWEENEY, THIELE, TITUS, WEPRIN, WRIGHT, ZEBROWSKI -- (at request of the Governor) -- read once and referred to the Committee on Judiciary

AN ACT to amend the domestic relations law, in relation to the ability to marry


THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:


Section 1. This act shall be known and may be cited as the "Marriage Equality Act".

My comment - The original bill didn't have a title, and a bill like this, even with the "poison pill" provisions we are going to review, really should not have a name with "Equality" in it - because the poison pills expressly allow discrimination.


S 2. Legislative intent. Marriage is a fundamental human right. Same sex couples

and their children 

My comment - I have no idea why on earth the Republicans insisted that the words "and their children" be stricken from the declaration of legislative intent.  It appears to me to be more than a mere oversight, and I think that the omission is an outrage.

should have the same access as others to the protections, responsibilities, rights, obligations, and benefits of civil marriage. Stable family relationships help build a stronger society. For the welfare of the community and in fairness to all New Yorkers, this act formally recognizes otherwise-valid marriages without regard to whether the parties are of the same or different sex. It is the intent of the legislature that the marriages of same-sex and different-sex couples be treated equally in all respects under the law. The omission from this act of changes to other provisions of law shall not be construed as a legislative intent to preserve any legal distinction between same-sex couples and different-sex couples with respect to marriage. The legislature intends that all provisions of law which utilize gender-specific terms in reference to the parties to a marriage, or which in any other way may be inconsistent with this act, be construed in a gender-neutral manner or in any way necessary to effectuate the intent of this act.


S 3. The domestic relations law is amended by adding two new sections 10-a and 10-b to read as follows:


S 10-A. PARTIES TO A MARRIAGE. 1. A MARRIAGE THAT IS OTHERWISE VALID SHALL BE VALID REGARDLESS OF WHETHER THE PARTIES TO THE MARRIAGE ARE OF THE SAME OR DIFFERENT SEX.


2. NO GOVERNMENT TREATMENT OR LEGAL STATUS, EFFECT, RIGHT, BENEFIT, PRIVILEGE, PROTECTION OR RESPONSIBILITY RELATING TO MARRIAGE, WHETHER DERIVING FROM STATUTE, ADMINISTRATIVE OR COURT RULE, PUBLIC POLICY, COMMON LAW OR ANY OTHER SOURCE OF LAW, SHALL DIFFER BASED ON THE PARTIES TO THE MARRIAGE BEING OR HAVING BEEN OF THE SAME SEX RATHER THAN A DIFFERENT SEX. WHEN NECESSARY TO IMPLEMENT THE RIGHTS AND RESPONSIBILITIES OF SPOUSES UNDER THE LAW, ALL GENDER-SPECIFIC LANGUAGE OR TERMS SHALL BE CONSTRUED IN A GENDER-NEUTRAL MANNER IN ALL SUCH SOURCES OF LAW.


S 10-B. APPLICATION. 1. NOTWITHSTANDING ANY OTHER PROVISION OF LAW, PURSUANT TO SUBDIVISION NINE OF SECTION TWO HUNDRED NINETY-TWO OF THE EXECUTIVE LAW, A CORPORATION INCORPORATED UNDER THE BENEVOLENT ORDERS LAW OR DESCRIBED IN THE BENEVOLENT ORDERS LAW BUT FORMED UNDER ANY OTHER LAW OF THIS STATE OR A RELIGIOUS CORPORATION INCORPORATED UNDER THE EDUCATION LAW OR THE RELIGIOUS CORPORATIONS LAWS SHALL BE DEEMED TO BE IN ITS NATURE DISTINCTLY PRIVATE AND THEREFORE, SHALL NOT BE REQUIRED TO PROVIDE ACCOMMODATIONS, ADVANTAGES, FACILITIES OR PRIVILEGES RELATED TO THE SOLEMNIZATION OR CELEBRATION OF A MARRIAGE.


2. A REFUSAL BY A BENEVOLENT ORGANIZATION OR A RELIGIOUS CORPORATION, INCORPORATED UNDER THE EDUCATION LAW OR THE RELIGIOUS CORPORATIONS LAW, TO PROVIDE ACCOMMODATIONS, ADVANTAGES, FACILITIES OR PRIVILEGES IN CONNECTION WITH SECTION TEN-A OF THIS ARTICLE SHALL NOT CREATE A CIVIL CLAIM OR CAUSE OF ACTION.

My comment – Sections 10-b 1 & 2 are not objectionable – all it means is that if the local Knights of Columbus, American Legion, Lions Club, etc., as well as the churches and schools, can arbitrarily deny the use of their halls or other facilities for weddings.  It doesn’t mean that they can deny a celebration for other purposes than a “solemnization or celebration of marriage” – so maybe one of the extras the GOP Senators might be looking for here would be additional rights to discriminate.

3. PURSUANT TO SUBDIVISION ELEVEN OF SECTION TWO HUNDRED NINETY-SIX OF THE EXECUTIVE LAW, NOTHING IN THIS ARTICLE SHALL BE DEEMED OR CONSTRUED TO PROHIBIT ANY RELIGIOUS OR DENOMINATIONAL INSTITUTION OR ORGANIZATION, OR ANY ORGANIZATION OPERATED FOR CHARITABLE OR EDUCATIONAL PURPOSES, WHICH IS OPERATED, SUPERVISED OR CONTROLLED BY OR IN CONNECTION WITH A RELIGIOUS ORGANIZATION FROM LIMITING EMPLOYMENT OR SALES OR RENTAL OF HOUSING ACCOMMODATIONS OR ADMISSION TO OR GIVING PREFERENCE TO PERSONS OF THE SAME RELIGION OR DENOMINATION OR FROM TAKING SUCH ACTION AS IS CALCULATED BY SUCH ORGANIZATION TO PROMOTE THE RELIGIOUS PRINCIPLES FOR WHICH IT IS ESTABLISHED OR MAINTAINED.

My comment - This Section 10-b.3., already in the Assembly version, should be a deal breaker unless there is a provision added that this does not apply to any of these entities or organizations if they receive any source of public funding, and I would also add “or exemption from taxation” – though I don’t think that would go over very well.  I am appalled because this piece of the bill goes beyond marriage rights - we are dealing with a broad range of things, and a broad range of entities.  This may well be intended to be a legislative overturning of the 2001 New York Court of Appeals decision in Levin v. Yeshiva University, 96 N.Y.2d 484, 730 N.Y.S.2d 15, in which the Court held that Yeshiva University's restriction of housing to those with legally recognized family relationships with a student violated the New York City Human Rights law provisions on discrimination on the basis of sexual orientation.  This provision, without the addition of a ban on public funding for entities that so discriminate, will be a rather legislative rollback of both the New York City human rights law and the New York State Human Rights law, as amended by the Sexual Orientation Non-Discrimination Act in 2002 - I wonder whether the people and organizations supporting marriage equality right now understand that the poison pills already in the bill may well go too far?  Or are they so blinded by a single-minded desire to not have to take a drive or train trip to Connecticut to get married there and have the same full legal rights in New York as anyone else, with no poison pill? 

The thing is, the passage of the original bill without a specific addressing of the Yeshiva University case, would have been enough to overturn the specific facts of the case - since the unmarried lesbian couple would under the new law have the right to marry, the school's housing rule would no longer be violative of the human rights law because refusing accommodation an unmarried couple would not be discriminatory on the basis of sexual orientation.  Of course, if they would in fact be legally married, then we'd be in the same situation of having the school run afoul of the human rights law.  So it should be an acceptable "poison pill" but only if the law provides the school may take no public money if it intends to discriminate.  If they do, the law should prohibit the discrimination.

.
S 4. Section 13 of the domestic relations law, as amended by chapter 720 of the laws of 1957, is amended to read as follows:


S 13. Marriage licenses. It shall be necessary for all persons intended to be married in New York state to obtain a marriage license from a town or city clerk in New York state and to deliver said license, within sixty days, to the clergyman or magistrate who is to officiate before the marriage ceremony may be performed. In case of a marriage contracted pursuant to subdivision four of section eleven of this chapter, such license shall be delivered to the judge of the court of record before whom the acknowledgment is to be taken. If either party to the marriage resides upon an island located not less than twenty-five miles from the office or residence of the town clerk of the town of which such island is a part, and if such office or residence is not on such island such license may be obtained from any justice of the peace residing on such island, and such justice, in respect to powers and duties relating to marriage licenses, shall be subject to the provisions of this article governing town clerks and shall file all statements or affidavits received by him while acting under the provisions of this section with the town clerk of such town. NO APPLICATION FOR A MARRIAGE LICENSE SHALL BE DENIED ON THE GROUND THAT THE PARTIES ARE OF THE SAME, OR A DIFFERENT, SEX.


S 5. Subdivision 1 of section 11 of the domestic relations law, as amended by chapter 319 of the laws of 1959, is amended and a new subdivision 1-a is added to read as follows:


1. A clergyman or minister of any religion, or by the senior leader, or any of the other leaders, of The Society for Ethical Culture in the city of New York, having its principal office in the borough of Manhattan, or by the leader of The Brooklyn Society for Ethical Culture, having its principal office in the borough of Brooklyn of the city of New York, or of the Westchester Ethical Society, having its principal office in Westchester county, or of the Ethical Culture Society of Long Island, having its principal office in Nassau county, or of the Riverdale-Yonkers Ethical Society having its principal office in Bronx county, or by the leader of any other Ethical Culture Society affiliated with the American Ethical Union; PROVIDED THAT NO CLERGYMAN OR MINISTER AS DEFINED IN SECTION TWO OF THE RELIGIOUS CORPORATIONS LAW, OR SOCIETY FOR ETHICAL CULTURE LEADER SHALL BE REQUIRED TO SOLEMNIZE ANY MARRIAGE WHEN ACTING IN HIS OR HER CAPACITY UNDER THIS SUBDIVISION.


1-A. A REFUSAL BY A CLERGYMAN OR MINISTER AS DEFINED IN SECTION TWO OF THE RELIGIOUS CORPORATIONS LAW, OR SOCIETY FOR ETHICAL CULTURE LEADER TO SOLEMNIZE ANY MARRIAGE UNDER THIS SUBDIVISION SHALL NOT CREATE A CIVIL CLAIM OR CAUSE OF ACTION.


S 6. This act shall take effect on the thirtieth day after it shall have become a law.



My comment - the original bill was to take effect immediately.  I suspect that the idea of providing a 30 day window would be to allow opponents of connubial marriage rights being legally permitted on a gender-neutral basis, an opportunity to take their case to the courts to try to block the bill from becoming effective.

Now, as I am writing this, the GOP senators should be meeting as a majority conference, and it is possible that the fate of the marriage bill is in their hands.  We will not get a chance to see the final draft of the bill as they amend it to add more "poison pill" provisions


   
Further negotiations have been had between the Governor and Senators Andrew J. Lanza from Staten Island, Kemp Hannon from Long Island, and Steven Saland from Dutchess County, who have been pressing to enlarge the "poison pill" aspects beyond those already added to the Assembly bill.  In addition, there have been the "three men in a room" meetings among Governor Cuomo, Senate majority leader Dean Skelos, and Assembly speaker Sheldon Silver, that have, or may have, touched on the addition of additional poison pill language that would make the marriage bill less one of "equality" and more one of a second class status.  Perhaps the opponents have decided that we are the kind of fools who are willing to take a legal right under the same name but with a different outcome.

If what the Albany legislative meat grinder does to the marriage bill results in an enactment of a bill with the objectionable provisions already noted, as well as others, what would the GOP-controlled senate do to GENDA, assuming that the Republicans were to decide to take it up today, or in 2012?

Well, the marriage tale has not yet been fully spun out - but when I analyze the final result, I am sure it will be a cautionary tale, a canary that will have succumbed to the poisonous vapors exhaled by the members of the Republican majority that controls the New York State Senate.

The worse the marriage poison pill, the less likely it will be that the friends and advocates of GENDA will be able to avoid a similar fate in 2012.

If the marriage bill does in fact turn out to be a dead canary, I would suggest that the 2012 legislative strategy for GENDA, with a Republican controlled state senate, should be to expend enough effort to pass the Assembly the fifth time, but to concentrate the trans community's meager assets on influencing the outcome of the 2012 elections.

We will have an advantage - the 2010 census results are likely to create enough additional Democratic seats ao that even with the GOP drawing the lines, there should be at least 35 Democratic senators taking office in January 2013.  We will not have to swallow a poison pill in 2012 for GENDA, we just have to make sure that those 35 Democrats (with the exception of Ruben Diaz Sr., who appears to be a lost cause) are all going to support GENDA the way it was written. 

I have been posting and tweeting about the marriage bill poison pill for the past several days.  The juggernaut is in the hands of the GOP Senate majority - I do not want to give them GENDA to add the same sort of poison.

My sermon for Juneteenth, at Memorial United Methodist Church

The celebration of Juneteenth marked a milestone in the history of African American people in the United States. June 19, 1865 was the day that Major General Gordon Granger arrived in Galveston, Texas, where he read General Order #3 finally informing the slaves in the State of Texas that they were free, and implementing the Emancipation Proclamation made by President Lincoln on January 1, 1863.


And with the passage of the 13th, 14th and 15thAmendments, no longer would African American men each be counted as 3/5ths of a man, but only for the purpose of enlarging the impact of the votes of white men in slave states.

But who was left behind?

African American women.

ALL women.

In most states, still under the common law, marriage meant that “the two shall become one, and that one is the husband.” New York was one of a few states that had enacted “Married Women’r Property Acts, first in 1848, allowing married women to control their inherited property, and then in 1860, allowing married women to control their won wages.

But in many other states, women were given from the custody of their fathers, to the custody of their husbands – without rights, just like the “civil death” imposed on convcted felons.

The abolitionist movement had been almost evenly split on the idea of women’s rights.

So – when the 13th, 14th and 15th amendments were added to the Constitution, women were told, “you have to wait.”

Women worked on various states, securing the right to vote in some, and ecpanding the number of states in which they obtained legislative relief from the common law “civil death” for inheritances, and wages.

Finally, in 1920, Tennessee became the last state needed to ratify the 19th Amendment, which gave women the right to vote – 55 years after Juneteenth.

Women had parity in the Civil Rights Act of 1964 – BUT that was a fluke. The last minute amendment to add coverage for women was added by a segregationist, who thought that by adding women to the Act, it would lead what he believed would be fellow patriarchist northern moderates to reject the whole bill.

We are seeing a similar act playing out in the New York legislature today – at the time I wrote this sermon, New York is on the cusp of possibly enacting an historic bill that would enlarge the connubium of marriage rights by making the freedom to marry a gender neutral one, rather than being one of requiring that the parties be members of the opposite sex.

I can think of a couple of similar occasions – when the Roman Republic amended its laws to provide for connubium between patricians and plebeians. Prior to that, patricians and plebeians could not intermarry.

In American history, for many years there were laws against racial mixing in marriage – though they were for the maintenance of some mythical “purity” of the “white race,” since interracial marriages were permitted as long as no party was white.

California was the first state to overturn its anti-miscegenation laws, but the culmination of the effort came when the U.S. Supreme Court overturned Virginia’s law (as well as the laws of the remaining 18 states with such laws on their books) in the 1967 Loving v. Virginia (388 U.S. 1) case.

Today, there are yet other civil rights movements, and just as there was a situation in which the recognition of legal rights of women have lagged behind the rights of African American men, we now have a situation where the recognition of legal rights of transgender people are lagging behind those accorded to people whose sexual orientation is not heterosexual.

New York stands to be the sixth state to allow marriage rights to be expanded on a gender neutral basis – and this does provide rights to transgender people, too. But we were left out of the hate crimes law in 1999, and the Sexual Orientation Non-Discrimination Act was passed in 2002 without including transgender people in human rights laws.

Trans people are perhaps the least understood and most maligned minority in the United States. A recently published study, entitled Injustice at Every Turn, discloses the extent of the plight of my people. And yet, in debating the GENDA bill in the Assembly last week, Republicans were openly referring to it as a “:sexual perverts and predators relief act” in their remarks..

Celebration may be coming soon on marriage. And I will join in those celebrations, though my celebration will be muted, somewhat. As Frederick Douglass noted in his famous 4th of July speech in 1841, my time for celebration will not yet have arrived. And until my people are freed from the bonds of discrimination under the law, the idea of celebration rings hollow.

In today’s reading from Isaiah (Is. 61:1-2, 10-11), we see a foretaste of Juneteenth, and of the eventual recognition of the human rights of transgender people “The Lord has anointed me to proclaim good news to the poor, bind up the brokenhearted, proclaim freedom for the captives and release of prisoners.

And what does Paul (Gal.3:26-29) have to say? We are all one in Christ Jesus, neither slave nor free, neither male nor female.

In the Gospel of John (John 15:9-17) Yeshua himself calls us friends, and not slaves or servants.

So when people proclaim in their ignorance that God hates gay people, or that transgender people are less than human, they do not know what they are talking about.

When people, including high ranking prelates in large churches, hold out against basic human rights for transgender people, and the right to marry for people who are different, quite frankly, they are not asking WWJD!

So – on this celebration of Juneteenth, when there is much to praise, much to celebrate, and much for which to give thanks, we should also pause and reflect on just how much farther we must go before the arc of history bends far enough so that justice for all can be rendered, and we can all be free.

Marriage: New York Republicans looking for poison pill approach?

The news reports are that the fate of the New York marriage bill, for this year, and perhaps next year, will be up to the Republican state senate majority caucus - Senator Dwan Skelos, the majority leader, has left it up to his causuc to decide whether to bring the bill to a vote - and he noted that if they do decide to allow a vote, that it would be a "conscience vote" and that no vote would be taken if the majority within the majority caucus would prefer to impose party discipline - there would not be a vote taken at all in the event that party discipline is required.

The whip count isfor marriage is 31 - which includes 29 of the 30 Democrats (all except the implacable Ruben Diaz, Sr., who inexplicably voted in favor of the Dignity for all Students Act last year - which means he really is not all norally bad, but rather a particularly dark shade of gray).

(Meanwhile, the whip count for GENDA is already at 32 - enough for passage, but again, in the hands of the Republican majority leader and his caucus full of senators who falsely refer of us as "perverts and predators.")

However, getting that last vote might require unacceptable concessions.

The law, as of right now, is that same sex couples can go to neighboring Canada, Vermont, Massachusetts or Connecticut (or even several other jurisdictions that are a longer drive, or a plane flight away), get married legally in that other jurisdictin, and right now, today, have all the rights appurtenant to marriage in New York State.

That is because the New York State legislature has never passed a state-level Defense Against Marriage Act (called the Defense of Marriage Act by the alternate-reality proponents of such laws).  While the New York Court of Appeals in 2006 left the performance of marriage within the state to a decision to be made by the legislature, the courts have consistenty held that marriages legally performed out of state are fully enforceable in New York.

So if the Republicans decide that they won't support a bill that merely addresses the idea of expanding the connubium of marriage to make the institution gender neutral (extending the right to same-sex couples does not in any way adversely affect the rights of opposit-sex couples), they would be offering a poison pill defense - making the bill so unpalatable that no reasonable supporter should be willing to vote for it.

Some of the proposals for the poison pill will institutionalize the primacy of religious-based discrimination outside of the churches themselves.  Such a pill should be left untasted.  It would be far better to wait for redistricting and the 2012 elecstions, so that marriage, and GENDA both, can be enacted by a new legoslature in January 2013 as a top legislative priority,

The Republican majority must know that it is on borrowed time - the results of the 2010 census will resound as the death knell to Republican domination of the state senate in New York, even though the Republicans are the ones who will be drawing the district lines, the census results will result in at least 35 democratic senators coming out of the 2012 elections.

My advice to Democratic senators - if the Republicans go for a poison pill approach, do not take the pill!  It would be better to wait for real equality than to lessen the rights of LGBT New Yorkers who were and will be married out of state and already have marriages that are fully valid in New York State under New York law.  Make marriage, GENDA, and the Republican intransigence a major 2012 campaign theme, and then commit to doing justice in January 2013.

Addendum - June 21, 2011: This afternoon there were news reports that deals hed been cut on a "framework" for dealing with the rent control and tax cap issues, but the reports indicated that the Senate majority was considering adding "religious protections" to the marriage bill - there are more than adequate religious protections in existing marriage law, and to create a separate, lesser marriage right so that someone claiming to be "religious" can discriminate by providing spousal benefits to some married amployees and not others is a poison pill and should not be condoned.

If they want to provide religious protection, the bill should contain a provision that prohibits ministers of religion from performing any marriages as witnesses on behalf of the state (if they are also acting as presiders for their religious rite) - we should have a system similar to that used in Europe, in which the civil rights are not confused with the sacramental rites.

Marriage v. Civil Unions, with a postscript on Trans Rights

On the issue of marriage v. civil unions – “separate but equal" is still as bad an idea as it was during the period in which the United States permitted racial segregation with that as the basis), I'd like to examine the whole "civil union" as an alternative to "marriage" basis.

The ancient Romans used a term matrimonium to deal with the marriage concept of caring for children (the first part of the word comes from mater - the Latin word for "mother").

They had a separate concept of connubium (a word from which the English term "nuptial" emerges) that dealt with the rules as to who one could marry. In the early Roman Republic, patricians and plebeians could not intermarry - they did not have the right of connubium with each other, regardless of whether there would be children in a relationship.

Opponents of marriage fairness, whether they are in complete opposition, or merely want to create a separate legal status for gays, are possibly confusing matrimonium with connubium.

The right to marry is an issue of connubium - and the civil term "marriage" does not have to rerefer to a combination of matrimonium and connubium. (And with marriage being permitted between opposite-sex octogenarians and infertile (and other) couples who might not have the desire to raise children, the connubium issue - who may marry whom, is paramount.

It could easily be argued that the state is primarily concerned with the connubium aspect of marriage with marriage equality bills.

Even though the matrimonium aspect is one that would more often affect opposite-sex couples because of the fact that babies often (but not always) come as the result of heterosexual sexual encounters, matrimonium also involves caring for and nurturing children – something that studies have shown that gay and lesbian couples can do as well as, if not better than, heterosexual couples.

Matrimonium is the part of the marriage equation that Roman Catholics celebrate as a Sacrament of Holy Matrimony." For Catholics, the *sacramental* aspect is the matrimonium - at the same time, the Church recognized the connubium aspect for those who, in addition to the sacrament, wish to celebrate a Nuptial Mass.

There is nothing in any pending bill for marriage equality, marriage fairness, or the right to marry, that has any negative or deleterious impact, on the matrimonium aspect of marriage. In fact, what marriage equality bills do is enhance matrimonium to benefit children who live in households in which the parents are a same-sex couple.

This will have a particularly great impact on African-American and Latina lesbian couples, who are more likely to be raising children from previous relationships, than any other demographic. (One can argue that opposition to marriage fairness is racist, and onewould be right, in that context).

Religious-based opposition to civil marriage equality is absurd – perhaps a slogan should be made of "Marriage Rights for all, not Marriage Rites for all" with a crucifix for the central T in Rites. Despite rhetoric coming from some circles, there is no requirement that religions that do not accept marriage except between members of an opposite-sex couple, would be forced to perform or sacramentalize same-sex unions.

Still, for those religions that would wish to celebrate marriages for same-sex couples, a sacramental rite for same-sex marriages (or for octogenarians or infertile couples) would not have to include aspects that relate to matrimonium - (I mention marriages for opposite-sex octogenarians way past their child-bearing years in this context - this would avoid the necessity for some of the questions relating to bearing children - I have seen Catholic ceremonies for the elderly in which the question is always asked.) Of course, if the couple does have existing children (whether related by blood or adoption to one or both of the parties), plan to adopt, or have plans for surrogacy or medical procedures ranging from artificial insemination to embryo implantation, a celebration of the matrimonium aspect would be just as welcome as it would be

As I have mentioned, from the *civil* side in the marriage equality bills, we're talking mostly about connubium - the right to marry. The matrimonium comes in only if there are children involved, wheher pre-existing, later adopted, or in the case of pre-menopausal lesbians, even naturally born (though perhaps not "naturally" conceived, though I would not refer to artificial insemination or other fertility treatment as "unnatural.")

Using a different term for the connubium of same-sex couples than that used for the connubium of opposite-sex couples is a bad idea.

Call it marriage. Period. The focus is on the connubium - and that is the *only* change that marriage equality laws make. Matrimonium does not change - if there are or will be children, than the family created by marriage, regardless of the gender of the couple, will benefit the children.

For Roamn Catholic thrologians, one might find support for the idea in an unexpected place – a 1930 Papal encyclical from Pius XI, that, while it does put primacy on matrimonium, does place a lot of value in other aspects of marriage - this encyclical could actually be rewritten with very few changes to incorporate Catholic theological teachings that could be applied to same-sex couples as well.

Casti Connubii is the name of the encyclical.

Here is an excerpt, from Paragraphs 24 and 25:

24. This mutual molding of [husband and wife] spouses, this determined effort to perfect each other, can in a very real sense, as the Roman Catechism teaches, be said to be the chief reason and purpose of matrimony, provided matrimony be looked at not in the restricted sense as instituted for the proper conception and education of the child, but more widely as the blending of life as a whole and the mutual interchange and sharing thereof.

25. By this same love it is necessary that all the other rights and duties of the marriage state be regulated as [the words of the Apostle: "Let the husband render the debt to the wife, and the wife also in like manner to the husband,"] not just a 50-50 proposition, but as each spouse giving 100% to the other, to express not only a law of justice but of charity.

NOTE: [Bracketed] portions to be deleted, Italicized portions are my gender-neutral replacements.

It's *possible* that one day, ancient texts will be rethought - after all, even our Declaration of Independence and other foundational documents are sexist - with the declaration that "all men are created equal" - at a time when married women were considered as "civilly dead" as any convicted felon, since in marriage under the common law, "the two become one and that one is the husband."

Today, we read men in that document as encompassing both men and women. Perhaps the day will come when old documents that relate to sex-specific marriage roles can be recast and reunderstood in a gender-neutral manner.

Many states have made their marriage and domestic relations laws largely gender neutral, even if many have not yet taken the final step of making the connubium also gender-neutral.

New York State is once again on the brink of recognizing the broadening of connubium to make it gender neutral.

Postscript: (Meanwhile in New York, the transgender community languishes, desperately awaiting Senate passage of the Gender Expression Non-Discrimination Act (GENDA) – a bill which would serve to “catch up” the trans community on the issues of hate crimes (passed without us in 1999), and on human rights (passed without us in December 2002). GENDA passed in the Assembly this year one day before the Assembly passed the Marriage bill. While the Senate should take GENDA up immediately before marriage, that depends on the Republican leadership of the Senate, as to whether one, both, or neither bill will come up for a vote.

While making marriage laws gender neutral is a positive step for the trans and intersex communities as well as the members of the lesbian, gay and bisexual communities, the failure to enact GENDA will remain an indictment against the members of the legislature, and the governor, for not following through on this vital bill as well.)

When marriage equality comes to New York, and I fervently hope it does, if GENDA is not also passed, my celebration will be somewhat muted. Will the ardent advocates of marriage turn to help pass GENDA? Or will they disappear? And if GENDA does not get a Senate vote - when redistricting come in 2012, it would be my fervent hope that it would result in the election of 35 or 36 Democrats to the Senate - because once that happens, there will be no excuses left.

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.