Gotham Gazette

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The Legislature Acts, Doesn't Act and Reacts

Members of the New York State Senate and Assembly always go on a wild ride in the last few weeks of the session, passing bills by the bucketful, and ignoring others in the rush to adjourn. This year was no different, and when the dust settled – and the legislators had gone home – 2007 turned out to be at best a mixed year for advocates of greater civil rights and liberties.

Consider three bills before the legislature: one on gay marriage, one on the rights of accused rapists (and, not incidentally, the health of rape survivors) and one on transgender rights.

Same-Sex Marriage

In June, the State Assembly became only the third legislative body in the nation to pass a bill opening marriage to same-sex couples. (The other two such votes came in California where they were met by a veto from Governor Arnold Schwarzenegger.) The New York measure was a program bill submitted by Governor Eliot Spitzer, the first governor in U.S. history to propose such legislation. And it was guided to victory by openly gay Assemblymember Danny O’Donnell of the Upper West Side, who made personal appeals to scared and wavering colleagues. His efforts yielded a positive vote from Speaker Sheldon Silver, an Orthodox Jew who began public life opposed to gay rights, and an 85-61 victory, not overwhelming in a house with a 60-seat Democratic margin but beyond the expectations of most observers.

Earlier in the session, State Senate Majority Leader Joe Bruno made it clear that his house would not take up the same-sex marriage bill. “This governor has his priorities wrong,” Bruno said in April.

Spitzer conceded he did not think the bill had “a realistic shot” at being passed but said he was introducing the measure “because it's a statement of principle that I believe in and I want to begin that dynamic.”

The marriage equality bill enjoys broad progressive support, including backing from many unions and religious groups, mostly organized by the Empire State Pride Agenda, the state’s leading lobby group on gay, lesbian, bisexual and transgender rights.

Despite the breakthrough in the Assembly, opening marriage to gay and lesbian couples remains a heavy lift in New York. Beyond the predictable opposition from conservative Catholic, Protestant and Jewish leaders and the Conservative Party, it does not enjoy the support of Senators Charles Schumer and Hillary Clinton. They favor only civil unions, which they say will deliver all the rights of marriage while reserving that institution for heterosexual couples.

Mayor Michael Bloomberg, perversely, came out for same-sex marriage in 2005 on the day he announced his appeal of the only court decision in New York mandating it. His action deprived advocates of same-sex marriage of the opportunity to go to the Court of Appeals in 2006 with thousands of gay couples from the city who would have been legally married. In July 2006, the state’s highest court ultimately ruled 4-2 against a constitutional right of gay couples to marry.

Earlier this year, the Conservative Party tried to use the issue in a special election for a State Senate seat on Long Island, distributing fliers saying that electing the Republican candidate was the only hope for stopping gay marriage. But Democrat Craig Johnson, a supporter of same-sex marriage, won, reducing the Republican majority to two.

Most political observers believe that the Democrats are poised to regain a majority in a Senate that has been in Republican hands for most of the last 75 years. But unless there is a Democratic landslide in 2008, any new Democratic majority will be slim and not necessarily inclined to pass a controversial bill on same-sex marriage right away.

Transgender Rights

When the legislature finally passed a bill adding “sexual orientation” to the human rights law in 2002, it became the 13th state to do so. (The first was Wisconsin in 1981.)

New York balked, however, at including transgender rights in the human rights law 2002, and the Empire State Pride Agenda did not insist on it at the time. Today, discrimination on basis of “gender identity and expression” is illegal in 13 states -- including New Jersey, which acted this year -- and the District of Columbia. New York, though, still has no state law on the issue.

To remedy that, advocates have proposed a stand-alone bill called the Gender Expression Non-Discrimination Act, GENDA for short. Transgender activists such as Donna Cartwright argue that the push for this measure has not been nearly as intense as the advocacy work for the marriage bill. It did not even get a vote in the Assembly, let alone the Senate. “GENDA needs extra emphasis to have a real chance of passage. And [the Pride Agenda]… has a real responsibility to give it that boost,” she wrote.

Alan Van Capelle, the Pride Agenda’s executive director, said that the group pushed hard on transgender rights this year and managed to get 95 sponsors in the Assembly, more than enough votes for passage – and 10 more than the number of members who voted for the marriage act. “One piece missing is that GENDA doesn’t have a Danny O’Donnell [chief sponsor of the marriage bill] who is going to work it every day,” he said.

Van Capelle also said that the marriage issue benefited from being in the papers and the public consciousness. “Legislators aren’t as educated about transgender issues,” he said.

HIV Tests for Rape Suspects

When Eliot Spitzer successfully ran for attorney general in 1998, his ad campaign featured a rape survivor complaining that a rape suspect cannot be force-tested for HIV, the virus that causes AIDS, “until after he’s convicted, maybe years later, which may be too late.” Spitzer proposed a law that would give rape victims the right to get rape suspects tested and the results supplied to them.

At the time, Spitzer’s proposal was condemned as “demagogic” by AIDS activists and his opponents in the race and lambasted by everyone from the state health department to the National Organization for Women. They said this issue presented a dangerous distraction from what rape survivors need to do vis-Ă -vis HIV -- commence a regimen of drugs within two to 36 hours of exposure that can prevent HIV from taking hold in their systems. Even if an immediate HIV result from a suspect was negative, the survivor of the attack needs to take the drugs in case the alleged perpetrator’s HIV infection is so recent that it does not show up in a test.

Results from a suspected or convicted rapist are “irrelevant,” AIDS specialist Dr. Howard Grossman said then. “If I were a rape victim, I’d be taking post-exposure prophylaxis no matter what the status of the perpetrator,” he told me at the time.

The New York State health department established a protocol for survivors of rape in 1998 that urged them to take the drugs necessary to prevent HIV infection immediately -- or at least within 36 hours.

During his eight years as attorney general, Spitzer did not publicly press for the HIV testing. Once he got elected governor, however, he resumed his quest for it, and it passed with overwhelming majorities in both houses of the legislature.

O’Donnell, one of 21 members of the Assembly to oppose Spitzer on the bill, said passage was “emotionally understandable, but the science was not out there.” State Sen. Tom Duane, the only legislator who is open about being HIV-positive, also came out against the measure. “This bill does nothing to protect victims and may do harm,” he said in an interview.

Andrea Mitchell, a rape survivor who works for Housing Works, an AIDS agency that worked to defeat the bill, wrote in the Albany Times Union that it fails to provide post-exposure drugs to survivors of rape and “focuses obsessively on the HIV status of the perpetrators of rape at the expense of their actual victims.” The bill as amended would only apply to suspects who have been indicted, something that almost never happens within 36 hours.

The measure was opposed by the New York Coalition Against Sexual Assault, Planned Parenthood, New York Civil Liberties Union and the YWCA.

Spitzer argues the testing would help survivors of sex crimes. His spokesperson told the New York Times, “The governor believes that a victim of rape or sexual assault needs to know as soon as possible the HIV status of their attacker. This information is critical to the physical and emotional well-being of the victim.”

Assemblymember Nettie Mayersohn championed Spitzer’s bill in the Assembly, chastising critics like Gay Men’s Health Crisis. “Their whole program is to protect the infected person, not the victim,” she told the New York Post.

Gay Men’s Health Crisis lobbied against the bill, but did not organize the kind of public outcry from the public health establishment that might have defeated the proposal. Indeed, despite the fact that the group’s executive director, Marjorie Hill, is a former assistant commissioner for HIV/AIDS Services at the New York City health department, she was either unable or unwilling to get the city department to speak out against it. A spokesperson for the department refused to make an on-the-record comment about whether or not the bill was good or bad for public health.

Many legislators feared that by voting against the bill, they could leave themselves open to attacks that they were soft on rapists. Indeed, just after the session ended, the State Senate Republican Campaign Committee set up a web site called New Yorkers in Jeopardy, targeting Democrats who voted against this bill accusing them of “not protecting us” and “not recognizing that a rape victim has a right to know if their rapist has HIV.”

Assemblymember Crystal Peoples of Buffalo acknowledged being “confused” during the floor debate, but she voted for the bill anyway. Assemblymember Patricia Eddington of Patchogue, a clinical social worker, at first condemned it as “feel good legislation,” but after two amendments were added voted for it. Assemblymember Charles Levine of Glen Cove said, “I don’t know whether this is a just bill,” but he voted for it anyway saying that “part of the healing process means that someone’s got to feel safe.”

Some members resisted. Deborah Glick of Greenwich Village said that the only way to determine if a rape survivor has been infected “rests with the victim and that information is not provided by testing someone else.” Ellen Jaffee, a member of the Assembly from Pearl River, said the bill provided “false hope” and is “neither grounded in science nor appropriate public health policy.”

Mixed Message

Some opponents of the bill worry about what it says about the governor. While Michael Kink of Housing Works praises the governor’s competence, he said Spitzer’s “willingness to choose the soundbite is a serious flaw.” Kink said administration officials leaned on the state health department to provide a letter of support for the bill.

Other observers do not discern an obvious pattern on the part of the governor or legislature. Assemblymember Dick Gottfried of Chelsea said, “I don’t know if there is a pattern or theme to the actions of the legislature in these three bills….Each of these issues has its own pluses and minuses and merits and politics.” Gottfried voted for the marriage bill, against the AIDS bill and could not get his transgender rights bill to the floor.

Van Capelle of the Pride Agenda agreed. “I don’t think the legislature acts in thematic ways. You can see them doing things that seem to contradict each other.”

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.  

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