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New York Plays Key Role in Fight for Transgender Rights


As the debate over civil rights protections on the basis of “gender identity and expression” heated up in Congress, five of New York City’s members in the House of Representative voted against the federal Employment Non-Discrimination Act on November 7 because it does not cover transgendered people. At the same time, pressure is building in Albany for at least the Democrat-controlled Assembly to add gender identity to the state human rights law, which incorporated protections for gay people in 2002 while defeating an amendment covering people of transgender experience. In New York City, where the city law has covered gender identity since 2002, transgendered people still encounter persistent discrimination, putting this new civil rights measure to the test.

The City Law

New York City was late among major cities in adding sexual orientation to its human rights law. It did not pass what was known as the “gay rights bill” until 1986 and took until 2002 to add gender identity. Michael Silverman, executive director of the Transgender Legal Defense and Education Fund called the city law “great,” but said, “That doesn’t mean we don’t have a long way to go.”

Silverman said that while much of the discrimination that many New Yorkers experience tends to be subtle, people who are transgendered still are subject to discrimination that is “so obvious and degrading” that it is hard to believe.

He is handling a complaint now from a person whose license was marked “M” for male even though she presents as a woman. When she showed identification to get served in a bar, the manager said, “Your ID says male. I can’t accept that.”

“ It’s certainly OK to ask to see an ID to verify a person’s age,” Silverman said, but it illegal to discriminate based on gender identity or expression. In response to her compliant, a police officer went to the bar on the border of Chelsea and Greenwich Village. Although sympathetic, the officer said, “We can’t do anything.”

On the last Sunday in June, Khadijah Farmer, a lesbian with close-cropped hair, was using the women’s restroom at the Caliente Cab Company in the Village when a male bouncer burst in and banged on her stall door demanding that she leave. Farmer said she tried to show the man her license identifying her as female, but the bouncer wouldn’t look at it. He threw Farmer and her friends out, making them pay for food they had just started eating. Ironically the incident took place on Lesbian, Gay, Bisexual and Transgender Pride Day just south of Sheridan Square where the Stonewall Rebellion launched the modern gay movement in 1969.

Representatives of the restaurant deny Farmer’s version of events, but refuse to offer one of their own. The Transgender Legal Defense and Education Fund is suing the Caliente Cab Company and transgendered people and their supporters have picketed it. The establishment has not, however, been put out business by an angry community

Melissa Sklarz, a veteran transgender political activist, served on a committee at the City Human Rights Commission that worked on guidelines for implementing the city transgender rights law and believes “more and more people are aware of the law now.” But, she said, “For the law to work, we need courageous people like Khadijah Farmer who are willing to stand up.”

As the Farmer case illustrates, you do not have to be a transsexual or a transitioning transperson to need the protection under the category of gender identity and expression. Farmer says she is happy being a woman, even if her style of dress and grooming lead some people to mistake her for a man. Indeed, we all cross traditional gender boundaries in small and sometimes large ways, from women who wear pants and men who wear makeup to women who fight wars and men who won’t.

Beyond the question of discrimination, these issues have very practical implications, particularly in this era when everyone must constantly show identification. Joann Prinzivalli, director of the New York Transgender Rights Organization and a transwoman, has a driver’s license that says “female.” The license was issued before 2002 when people had to have completed transgender surgery to be identified in accordance with their identity and not their biology. New York State will also change the designation on a birth certificate if one is post-operative.

But Prinzivalli’s passport still says “male” and by 2013, we are all going need a passport or federal REAL ID for air travel even within the United States and to enter federal buildings. In those cases, her gender presentation will not line up with how she is identified on her papers. “I’ll be shut out of air transportation,” she said. In the politically explosive debate over identification documents mostly dealing with undocumented immigrants, the concerns of transpeople are not considered.

Legislature Resists Transgender Protections

The Republican-led New York State Senate finally added sexual orientation to the state human rights law in 2002. But the Senate remains resistant to protecting transgendered people. It will not take up school anti-bullying legislation that includes sexual orientation and gender identity. Senate Majority Leader Joseph Bruno has said he is not interested in protecting, as he put it, “transvestites.” The Gender Expression Non-Discrimination Act has not so much as had a hearing in his house.

For its part, the Democrat-dominated Assembly voted to open up marriage to same-sex couples earlier this year. However the Assembly, under Speaker Sheldon Silver, has refused to take up amending the state human rights law to add “gender identity and expression.”

The Empire State Pride Agenda, the state’s gay and transgender lobby group, has made the Gender Expression Non-Discrimination Act its number one priority in the Assembly next year, according to Joe Tarver, communications director for the group. The bill, he said, now has 72 sponsors and 95 members committed to vote for it on the floor. Seventy-six votes are needed for passage.

Tarver noted that on October 1, the state Democratic Party approved a resolution supporting the bill. That together with the debate over transgender inclusion in the federal civil rights bill “are raising consciousness about what it means to be discriminated against based on gender identity,” he said. “It’s in the news and the political establishment is paying attention,” much the way they did to the marriage issue.

On average, according to Dan Pinello of the John Jay College of Criminal Justice, states that pass laws banning discrimination on the basis of sexual orientation wait another 14 years before adding protections based on gender identity—a legal term that was not even coined when Wisconsin became the first state to pass a gay rights law in 1982. Sklarz and Tarver believe that, it is going to take the election of a Democratic Senate for the bill to clear the legislature.

The last three states to pass gay rights laws—Colorado, Iowa and Oregon-–covered gender identity at the same time.

The Fight in Washington

In the 1970s, New York Representatives Ed Koch and Bella Abzug were among the first sponsors of a federal bill to add sexual orientation to the Civil Rights Act of 1964. The idea attracted more and more sponsors over the years, but never got a hearing in Congress.

In 1994, a scaled-down version of the federal gay rights bill was introduced covering only most forms of employment and not housing or public accommodations. Supported by a broad coalition of civil rights groups, the Employment Non-Discrimination Act also went nowhere.

In 2004, out gay Representative Barney Frank and the chief lobbyists for the bill at the Human Rights Campaign bowed to growing insistence by gay and transgendered activists across the country and included transgender protections in the bill. It, too, languished in the Republican-controlled House

But this year, just before it was to come up for a vote in the new Democratic-led Congress, Frank announced that the votes were not there for gender identity and he introduced a bill without protection for transgendered people. He said Congress could add gender identity to the law sometime in the future.

A national uproar in the gay and transgender movements ensued. More than 300 groups, led by the National Gay and Lesbian Task Force and including most statewide advocacy groups such as New York’s Pride Agenda, formed a coalition called United ENDA demanding that transgender protections be restored and that any bill without it be defeated.

New York Representative Jerry Nadler was the first member of Congress to announce he disagreed with Frank’s strategy. Nadler argues against splitting gender identity from sexual orientation—especially since President George W. Bush would veto a bill covering either.

When Frank’s gay-only bill was approved in committee last month, four liberal Democrats, including Representative Yvette Clarke of Brooklyn, voted against it because it did not include gender identity protections. Representative Anthony Wiener of Brooklyn and Queens has endorsed the stand taken by Nadler and Clarke.

The House approved the Employment Non-Discrimination Act covering only sexual orientation on November 7 by a vote of 235-184. An amendment to cover gender identity was offered by out lesbian Representative Tammy Baldwin, a Wisconsin Democrat, and withdrawn.

When the bill reached the House floor, New York Representatives Nadia Velazquez and Edolphus Towns joined Nadler, Clarke and Weiner in voting against it because of its failure to protect transgendered people. Nadler said in a statement that, if Baldwin's amendment failed, "I will not be able to vote for the underlying bill because it fails to uphold the American values of fairness and equality.” He also said, "Splitting sexual orientation and gender identity disserves the entire LGBT community and invites the kind of legal mischief that has undermined other civil rights laws."

The most extraordinary thing about this whole debate is the way in which it demonstrates how the gay rights movement has embraced people of transgender experience and how the category of gender identity is now seen as essential not just to protecting transpeople, but gays and lesbians as well. Indeed, the New York-based Lambda Legal Defense and Education Fund wrote a lengthy attack on Frank’s stripped-down bill making these points. Whatever happens, as I wrotein the Gay City News, the current debate on transgender rights presents a unique opportunity to educate the American public about how prejudices about the way all of us -- transgendered or not, gay or straight – present our gender can create inequities in the workplace and beyond.

Andy Humm, a former member of the City Commission on Human Rights, has been in charge of the civil rights topic page since its inception in 2001. He is co-host of the weekly "Gay USA" on Manhattan Neighborhood Network (34 on Time-Warner; 107 on RCN) on Thursdays at 11 PM.

 

Latest License Plan Angers Almost Everyone


New York Governor Eliot Spitzer has been in the national spotlight since his controversial announcement in September that he would grant undocumented immigrants driver's licenses. In the face of strong criticism from the Republicans and dropping approval ratings in opinion polls, late last month Spitzer offered a new plan - a three-tiered policy that will offer different licenses for people with various immigration status.

This time, Spitzer found himself a powerful partner and supporter- the Department of Homeland Security. But a number of people who backed the initial proposal, including many immigrant rights groups, are angry at what they see as a betrayal. And many who opposed the initial proposal do not like this one either.

A Federal Seal of Approval

In a joint press conference with Secretary of Homeland Security, Michael Chertoff, Spitzer unveiled his new license plan, five weeks after he introduced his initial proposal to offer a driver's license to any New Yorker who wanted one, regardless of immigration status. Under the revised plan, American citizens and legal residents will be able to apply for a license that meet the requirements of the REAL ID Act. This would allow them to board a plane and enter federal buildings. A second type of license, also available to citizens and legal residents, will allow its holders to cross New York-Canadian border without carrying a passport. Both licenses are federally approved.

But the real controversy surrounds the third kind of license. It is available to undocumented immigrants as well as legal residents and citizens who choose not to have the first two types of licenses. This license is only valid for driving and insurance. It will be marked "Not for U.S. government purposes."

" The comprehensive plan we have developed makes our state more secure by bringing more people into the system and provides the greatest number of people with the greatest amount of security possible," said Spitzer. "The new system provides New Yorkers with the option of three secure licenses that will offer New Yorkers maximum choices for driver's licenses, uphold the strictest security standard and ensure the economic vitality of Upstate New York."

Chertoff, while saying he does not endorse giving licenses to people who are not here legally, added that federal law does allow states to make that choice. “What we can do is insist that licenses that do not meet federal requirements be clearly so labeled,” said Chertoff. “New York has agreed to do that. In sum, that clarification, along with implementing REAL ID and enhanced driver’s licenses, represents a major step forward for security, both for New York and for the country. Accordingly, I’m pleased to have reached this agreement.”

A Boost for the REAL ID

Despite the governor's insistence that he did not change his policy due to the heavy opposition, the new plan is widely seen as a compromise between a governor who is desperately seeking support from his own constituency and a federal agency that is struggling to persuade states to adopt a stricter license program that sets national standards for state-issued identification cards. These could be issued only to applicants who can prove citizenship or legal immigration status.

That program is based on the REAL ID Act. Initiated by a recommendation from the 9/11 commission, the REAL ID aims to set = stricter and standardized regulations in an effort to keep terrorists and illegal immigrants from getting U.S. identification cards or driver's licenses. Once the program is implemented, all ID holders of state identification cards and driver’s licenses will have to renew them in person by 2013. The will be required to present a form of photo identification and documents proving date of birth, Social Security number (or verification of ineligibility) and proof of residence.

Critics of the program have cited privacy concerns and threat of identity theft and say the REAL ID could cost more than $10 billion a year. Seventeen states have passed laws to rejecting it. Winning support from a big state like New York could be a big boost for the REAL ID.

Creating Controversy

The political storm over the license plan has presented Spitzer with him biggest challenge in his 10-month-old governorship. According to a poll by Siena Research Institute, 72 percent of New Yorkers did not support Spitzer’s original plan. His approval rate has fallen to 42 percent.

And the debate has entered the presidential campaign. Senator Hilary Clinton, a front-runner for the Democratic presidential candidacy, stumbled when asked about Spitzer’s proposal during the Democratic candidates debate in Philadelphia on October 30.

" What Governor Spitzer is trying to do is to fill the vacuum left by the failure of this administration to bring about comprehensive immigration reform," said Clinton during the televised debate. "Well, I just want to add, I did not say it should be done, but I certainly recognize why Governor Spitzer is trying to do."

The remark, supportive but vague, immediately drew criticism from her Democratic competitors as well as Republican presidential hopefuls. Both former Senator Carolina John Edwards and Senator of Barack Obama went after her during the debate.

“ Unless I missed something, Senator Clinton said two different things in the course of two minutes just a few minutes ago,” said Edwards.

“ I was confused on Senator Clinton’s answer. I can’t tell whether she was for it or against it,” Obama said.

Former New York Mayor Rudolph Giuliani was especially harsh. He told reporters in New Hampshire: "She is known for taking one position with one audience and another position with another audience. ...What they didn't know is she can actually take two positions in front of the same audience."

To quickly control the damage, Clinton officially voiced her support for Spitzer's three-tier plan just a few hours after her appearance at the debate.

" Senator Clinton supports governors like Governor Spitzer who believe they need such a measure to deal with the crisis caused by this administration's failure to pass comprehensive immigration reform," her campaign said in a statement. "As president, her goal will be to pass comprehensive immigration reform that would make this unnecessary."

“ Senator Clinton broadly supports measures like the ones being advocated by Governor Spitzer,” added Clinton spokesperson Phil Singer. “But there are details that still need to be worked out.”

A Scarlet ‘I’

Clinton may not be clear where she stands on the latest version of Spitzer’s plan. But groups representing immigrants have left no doubt of their position: They do not like it.

Chung-Wha Hong, executive director of the New York Immigration Coalition, called the lower-tiered license “scarlet letter” for illegal immigrants, and the governor’s change of plan “complete betrayal.”

“ What a political flip,” said Hong, who organized a protest on October 28. “He’s now embracing and letting his good name be used to promote something that has been widely known in the immigrant community as one of the most anti-immigrant pieces of legislation to come out of Congress.”

John Liu, the City Council member from Flushing, Queens, who also attended the rally, said he was confused by the governor’s change of position.

“ Now the new development is not going to help the situation in terms of making sure people are properly licensed and insured to operate motor vehicles,” Liu said. “This is a new segregation in New York.”

Donna Lieberman, executive director of New York Civil Liberties Union, said the separate license could be an invitation for law enforcement to arrest undocumented immigrants who carry it.

“ Real ID -- a national ID card -- will facilitate the tracking of Americans’ movements,” said Lieberman in a prepared statement. “Each swipe of the card will leave a digital fingerprint that can be centralized into one national database to track Americans’ activities. Coming from the administration that brought us the Patriot Act and warrantless wiretapping, the possibilities are endless, as is the potential for abuse.”

Those Opposed Stay Opposed

Meanwhile, many people who were against Spitzer’s original license plan do not like the three-tiered plan either.

This includes Mayor Michael Bloomberg, who had come out against the initial idea. When asked about the new one, the mayor told CNN, “I still don’t think that is where we need to be.” In particular, Bloomberg expressed concern about whether any of the three licenses would enable a person to buy a gun. Previously David Swartz, state commissioner of motor vehicles, had indicated the license for undocumented immigrants would be sufficient identification for purchasing a firearm. Sources in the governor's office denied this.

Rensselaer County Clerk Frank Merola, a member of the New York State Association of County Clerks who had filed a lawsuit against the original plan, said the suit would continue – despite Spitzer’s revisions. In counties outside New York City, Long Island, and Westchester, county clerk offices act as agents of the DMV to issue driver’s license. Some clerks have vowed not to issue licenses to people who cannot prove they are in the country legally.

" He hasn't changed anything," Merola said of Spitzer and his three-license proposal. "He's still looking to do the same thing that he was looking to do a month ago."

The State Senate, with a Republican majority, also passed legislation to overturn Spitzer’s plan. But the bill will most likely fail in the Democrat-dominated State Assembly. For their part, Republicans in the Assembly have said they will file a lawsuit to stop what they call as "illegal plan.” which was announced Saturday. The Republican leader of the Assembly, James Tedisco, said issuing licenses to undocumented immigrant would "make our state and nation a less secure, less safe place."

Responding to Spitzer’s latest proposal, Tedisco said, “"What he's done is make more people upset from both sides — those that supported him and those who were against him."

The governor plans to implement the three-tier licenses next year.

Larry Tung, a native of Taiwan, teaches media and film courses at Kean University in Union, New Jersey. A resident of Brooklyn, he is also a documentary filmmaker whose work focuses on immigrant and Asian American issues.  

Driver's Licenses for the Undocumented


Jola Z. wishes she could drive her kids to Six Flags one day. But with an expired U.S. tourist visa, the Polish native is not eligible to apply for a driver's license. Working under the table as a nanny since her arrival in Greenpoint, Brooklyn in January 2006, Jola (who would not give her full name) wants a car not for herself, but for her family.

"In Poland, people usually have one car per family," she said. "My husband used to love to drive, and my son would love to have it, too."

Now New York Governor Eliot Spitzer has granted her wish. He has announced that people applying for a driver's license will no longer have to show proof of legal immigration status. The policy will also introduce new anti-fraud measures, including a program to verify foreign passports and photo comparison technology that will prevent duplication of IDs.

Spitzer called the move a "common sense" change, saying the measure deals with the reality that hundreds of thousands of undocumented immigrants live in the state. "Allowing them the opportunity to obtain driver's license in a responsive and secure manner will help increase public safety," he said.

His decision, though, has set off vociferous opposition particularly from Republican politicians, but also from some Democrats, Mayor Michael Bloomberg and a number of the officials who would have to put the policy into effect.

Behind the Change

In announcing the new policy, Spitzer abolished a 2002 executive order from Republican Governor George Pataki that required license applicants to submit a Social Security number or proof that they are ineligible for one.

Spitzer has painted the move largely as a public safety effort. The change, he has said, will "increase the security of our license system by obtaining better and more verifiable information from applicants, which decrease the number of uninsured drivers on the roads, lower auto insurance rates for all drivers, and, when necessary help law enforcement agencies in their investigations."

Unlicensed drivers are almost five times more likely to be in a fatal crash than licensed drivers, according to the a report titled "Unlicensed to Kill" by the AAA Foundation for Traffic Safety, a Washington D.C.-based research and educational organization,.

The New York Department of Insurance estimates that expanded access to driver's licenses will reduce the premium costs associated with uninsured motorist coverage by 34 percent, which will save New York drivers a total of $120 million a year.

"The policy change allows the Department of Motor Vehicles to focus its resources on its core mission -- to ensure that every person driving on our roads is fit to drive and can prove his or her identity," said the department's commissioner, David Stewart. "Rather than bury our heads in the sand and pretend the problem does not exist, today we are choosing to confront it and in doing so greatly improve the safety of our roads."

The Next Step

In doing this, New York will become the ninth state that does not require driver's license applicants to prove legal immigration status, joining Hawaii, Maine, Maryland, Michigan, New Mexico, Oregon, Utah and Washington.

The policy change in New York does not require legislative approval. Implementation will take place in two phases. In Phase 1, former and current license holders will be able to renew their license regardless of their immigration status by the end of the year. Phase 2 will begin six to eight months after Phase 1 and open the application process to all New York State residents.

While Spitzer has the authority to change the policy in New York, he faces a strong challenge from the federal government's REAL ID Act. Signed into law by President George W. Bush in 2005, this establishes a national standard for issuing driver's licenses. That requires all applicants for state IDs and driver's license to provide documentation of legal immigration status in addition to proof of name, age and residence. If a state does not comply with those standards, its licenses will not serve as proper identification for entering a federal facility or boarding a federally regulated commercial plane. The standards must be met by May 10, 2013.

Mayor Michael Bloomberg, usually a close ally of Spitzer's and a pro-immigration politician, voiced opposition to Spitzer's plan, saying, that if it went ahead, New York State's driver's license might not be acceptable proof of identification for air travel. "People would need other form of identification, generally a passport, and that would be a very big problem," said the mayor.

Spitzer later blasted Bloomberg, saying that the mayor is "wrong at every level-dead wrong, factually wrong, legally wrong, morally wrong, ethically wrong."

The Opposition

Meanwhile, Republican elected officials across the state voiced stronger criticisms than Bloomberg, calling Spitzer's move is politically motivated and charging that it could endanger national security.

"Governor Spitzer should not view New York state driver's license like baseball cards-handing them out just to score political points," State Senator Dale Volker of Erie County told the New York Post.

James Tedisco, the Republican State Assembly minority leader from Schenectady, said terrorists will welcome Spitzer's license plan. "I think Bin Laden is popping the cork off some champagne right now when he hears something like this," Tedisco said.

Peter Gadiel, the president of 9/11 Families for a Secure America, who lost his son in the World Trade Center attack, echoed Tedisco's concern. "If the governor follows through with his plan, when there is another 9/11, it is likely those involved will have obtained New York drivers licenses," Gadiel said in a statement published on the group's Web site. "In that case, Spitzer will have on his hands the blood of the victims."

But the real challenge to Spitzer's announcement came from some of the state's county clerks. A number of clerks, particularly upstate Republicans, have said they will not issue licenses to undocumented immigrants—regardless of what Spitzer might say. This could lead to a legal battle.

"I'm not going to process a driver's license for someone who cannot prove they are here legally, Frank Merola, County Clerk of Rensselaer County told the New York Sun. "I know I am not going to do it. The governor is going to really have to take a second look at this."

Cheryl Dinolfo, the county clerk of Monroe County and a Republican, said, "I believe that the state DMV is asking my office to help illegal immigrants to break the law, and this policy is one that cannot stand."

But the Spitzer administration stands firm on the policy change. In 51 of the state's 62 counties, county clerks operate Department of Motor Vehicles offices as state agents. In New York City, Long Island and Westchester, the state operates the facilities.

"The county clerk must respond and adapt to DMV policy and not doing so would be a flagrant violation of state law," Christine Anderson, press secretary to the governor, has said. She told the New York Times that the county clerks would be subject to lawsuits by the state and license applicants if the offices turn away eligible applicants.

Despite the possible rebellion from the Republican county clerks, state officials said any refusal on their part would be unlikely to have a big impact since most of the undocumented population lives in New York City, Long Island and Westchester, where Department of Motor Vehicles offices are directly operated by the state. Meanwhile, upstate residents would be free to travel to those counties to apply for licenses.

For the Policy

Not everyone opposes the new license policy. Immigrant groups have hailed the announcement, applauding Spitzer for making a brave move in a political climate that is pushing for tightening identification standards and cracking down on identity fraud.

"New York State's new driver's license policy is a win-win for immigrants and for all New Yorkers and a giant step forward for public safety," said Chung-Wha Hong, executive director of the New York Immigration Coalition, an umbrella group for immigrant organizations. "Not only will the new policy enable more New Yorkers to get licensed and insured, making our roads much safer, but it will also make our licensing system far more secure and immune to fraud."

Nadia Marin-Molina, executive director of the Long Island-based Workplace Project, an immigrant advocacy group, said the policy was simply practical. "There are so many people here who are supporting families who need driver's licenses in order to continue to do that," Marin-Molina told Newsday. "People need to drive, especially on Long Island and upstate New York where there isn't good public transportation."

But to Jola, the Polish nanny from Greenpoint, Brooklyn, all these political debates and the national security concern over the driver's license seem irrelevant.

"The terrorists have their own ways of getting picture IDs," she said. "There are so many agencies that would make you a fake ID for $20, so I am sure they won't need the real one. They can get the fake ones if they want to."

Larry Tung, a native of Taiwan, teaches media and film courses at Kean University in Union, New Jersey. A resident of Brooklyn, he is also a documentary filmmaker whose work focuses on immigrant and Asian American issues.

 

 



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