GENDA: What It Does/n't Do, and Lessons for the Path Ahead
On Friday, January 25, 2019, Governor Andrew Cuomo signed into law the Gender Expression Nondiscrimination Act (GENDA). This new law was 15+ years in the making, and so it was heralded by politicians and many LGBTQ community members as a major victory for transgender New Yorkers, as it added “gender identity” and “gender expression” (GI/GE) to the list of protected statuses under the law.
However, that is not the whole story, nor is it the end of the story.
Forged from Betrayal: The Painful History of GENDA
In 2002, LGBTQ advocates pushed an inclusive legislative agenda that would add sexual orientation (SO), GI and GE to the NYS Human Rights Law, Civil Rights Law, Education Law, and Hate Crimes Law. The organizations spearheading the agenda were run almost entirely by cisgender (i.e., non-transgender) lesbian, gay, or straight individuals and donors.
When they were met with resistance by more conservative legislators, advocates agreed to drop GI/GE from the bill in order to get SO to move through during legislative negotiations. As a result, the Sexual Orientation Nondiscrimination Act (SONDA) passed in 2002, becoming law in 2003. Advocates promised to come back for GENDA soon, but the imminent moment for championing transgender rights had passed.
This strategy of pushing forward with protections based on SO at the expense of transgender rights has played out again and again nationwide. Most notably, the federal Employment Non-Discrimination Act (ENDA) – the bill that would add federal employment protections based on SO, GI, and GE – has been introduced in all but one Congress since 1994 without success. The closest we got to securing ENDA was in 2007 – five years after we got SONDA in NYS – but even Democrats were worried about what it would mean to protect trans people in workplaces (citing bathroom issues, obviously), and so advocates dropped the trans element of the bill in hopes of at least protecting lesbian and gay employees. It didn’t work – despite this move, the ENDA died in the Senate, and has not moved since.
Likewise, GENDA was proposed in almost every legislative session since 2003, was approved by the Assembly many times, but always died in a Senate committee. This problem persisted not only because of the Republican controlled the State Senate, but also because in 2011 a group of Democrats called the Independent Democratic Conference (IDC) decided to utilize their voting power to side with Republicans (weakening any Democrat-majority).
With GENDA not moving, in 2015 Gov. Cuomo directed the NYS Division of Human Rights – the executive agency that administers and enforces the Human Rights Law – to create regulations that would protect transgender and gender-nonconforming people. In 2016, the new regulations clarified that GI and trans status were included under “sex” discrimination and gender dysphoria was included under “disability” discrimination. Since 2016, trans people have successfully used this regulation to exercise their rights and get the legal relief they need after experiencing discrimination.
2018 saw a major political sea-change in New York. The IDC dissolved itself in Spring 2018, the midterm elections resulted in a true Democratic majority in both legislative houses, and Gov. Cuomo was re-elected as a Democratic governor. This set the stage for a more liberal legislative agenda to make it through this legislative session. Thus, 16+ years after its first moment in the sun, GENDA passed and was signed into law.
There are very important historical lessons to be learned from this, so that we don’t repeat our mistakes in the future:
Organizations led, staffed, and funded primarily by cisgender people will only ever prioritize the interests of transgender people when it is politically or financially convenient for them to do so. We cannot rely on cis-run institutions to set trans people free.
Promoting half-baked legislation has far-reaching and long-term consequences for communities that are left out. In the cases of GENDA and ENDA, they caused immense rifts of trust between the trans and LGBQ communities that have yet to heal entirely, making any future collaborative efforts more difficult, strained, and unproductive. Perhaps had more money, resources, and trans leadership been present in the initial push for GENDA, along with a iron-clad resolve to get it through, we would have seen it pass in 2002 and gone on to pour our time and resources to accomplish other important agenda items over the past 16+ years.
Trans people should advocate for laws and policies that improve our lives and work toward our liberation. A primary (but not sole) reason trans advocates kept pushing for GENDA over the past 16+ years was out of spite, in an effort to prove ourselves as worthy in the eyes of so-called allies who dropped our protections back in 2002. As such, GENDA passing is hugely symbolic because it puts trans rights on equal footing with LGBQ counterparts and represents our tenacity to overcome political barriers. But pushing toward victory out of principle blinds us to unintended consequences of what we ultimately win and how we’re failing to meet the changing needs of our communities along the way. More on this point below.
Symbolic vs. Actual Victory: GENDA Falls Short
It’s important to distinguish between what GENDA will literally do, and what advocates hope it will do symbolically. There is no guarantee that symbolic victories will actually pan out, but the promise of these symbolic points were central to several of the assumptions underlying folks’ continued push for GENDA.
Let’s look at those now.
GENDA as a Symbolic Victory
GENDA symbolizes that the very powerful legal and political institutions in our state recognize the lived experiences of trans people and are willing to act to protect them. It also reflects our state’s willingness to regard trans people on the same legal level as LGBQ folks. We already know this in our hearts to be true but seeing it on paper is vindicating after major trust rifts occurred in 2002 and again in 2007.
GENDA symbolizes the resilience and perseverance of the trans community, overcoming all odds to win the day if we just work long enough and hard enough.
According to at least one trans advocate, the large-scale news cycle that accompanies GENDA’s passing brings more positive visibility to trans lives and also puts the public on notice that trans people are protected under state law. (I will address the recent role of media regarding trans rights in a different post -- stay tuned!)
Finally, GENDA’s passage will put everyone on notice that harming a trans person because they are trans is unacceptable and punishable as a crime. (See below for my thoughts on this.)
Adds GI/GE as new and separate protected statuses in the NYS Human Rights Law, Civil Rights Law, Education Law, and Hate Crimes Law. Depending on which law you're looking at, the other protected statuses include: race, creed, religion, color, national origin, SO, military status, sex, age, marital status, DV victims, disability, pregnancy-related conditions, predisposing genetic characteristic, prior arrest or conviction record, familial status.
Makes it a hate crime to attack someone because of their actual or perceived GI/GE or transgender identity, which means a perpetrator can receive a longer prison sentence if found guilty. (Much more on this below.)
These laws serve to protect people who experience discrimination for one or more protected statuses. For example, transgender people often experience discrimination not only because of their GI/GE, but also because of their race, SO, or disability.
GENDA is not the answer to our problems.
First, GENDA does not address the 2016 regulation that protects trans people under “sex” and “disability” discrimination. For now, trans people will presumably have the use of several potential legal claims – discrimination based on sex (which includes trans status), gender identity, gender expression, and/or disability. But in or before 2021, when the 2016 regulation comes up for review and reconsideration, we will likely lose the added protections under “sex” and “disability.” This does a huge disservice to trans people in two major ways:
Sex discrimination claims come with attorneys’ fees, which incentivizes attorneys to take these cases by promising reasonable payment if they win. Under the 2016 regulation, attorneys can get paid for taking on discrimination cases for trans clients, too, since GI/GE are included under “sex.” GENDA does not provide for attorneys’ fees at all, so there is no incentive for attorneys to take these cases. So, if the 2016 regulation is not renewed, then attorneys may be less likely to take on trans discrimination cases.
Under the 2016 regulation, trans people can claim disability discrimination if an employer fails to provide reasonable accommodations for their gender dysphoria. This is a very powerful claim and that can wield good results for trans employees. GENDA does not add gender dysphoria to the definition of “disability.” So, if the 2016 regulation is not renewed, trans people will lose access to a very helpful and powerful legal claim and legal remedies under the Human Rights Law.
Second, GENDA enshrines harmful criminal penalties into our state laws (more details below). Finally, although GENDA adds GI/GE to the list of protected statuses, it does nothing to address the enormous disparity of students’ rights under the Human Rights Law. Thanks to a 2012 decision by the NYS Court of Appeals (our highest court), the HRL only applies to private, non-profit, non-religious schools – only about 3% of the entire student population across New York! This means that vast majority of our students who attend public schools, or private religious schools, or private for-profit schools are not protected under the HRL. This court decision is still good law, and it will take our state legislature passing a new law to fix the gap and make sure all students in our state are protected under the law.
GENDA’s Hate Crimes Provision Hurts Our Collective Liberation
Hate Crimes Laws are intended to make someone think twice before committing a criminal act against someone based on protected statuses because they don’t want to face increased prison-time. In theory, this should deter a person from attacking a Black person because of their race, a gay person because of their sexuality, or a transgender person for their gender identity, for example.
However, many argue that the efficacy of hate crimes legislation is questionable at best, and that they tend to serve as a symbolic gesture than an actual tool for deterring hateful crimes. In this view, hate crimes laws primarily serve to nurture the racist, classist, homophobic and transphobic prison industrial complex by caging more human beings for longer periods of time. Historically marginalized communities (e.g., people of color, immigrants, and trans and gender-nonconforming folks) are already disproportionately impacted by police harassment and judicial/jury prejudice, and maximum sentencing practices – and so enhancing any criminal laws places already-vulnerable communities at even higher risk for harm by the State.
Our modern LGBTQ+ agenda must demand more than such fear-based and reactionary legislation that is not in any way preventative, restorative, or healing for victims, perpetrators, or our larger communities. We all deserve and must demand better.
Dreaming New Dreams: Looking Forward from Here
We must periodically reflect on and critically question the assumptions underlying the movement work we’re doing on behalf of our large and diverse communities. Movement work doesn’t happen in a vacuum – the conditions of the world around us are constantly changing, and it means we must be critical and flexible to meet the present-day challenges, concerns, vulnerabilities, and needs of our communities.
Critical Questions for Planning Future Trans Advocacy in NYS:
In 2002, we needed GENDA most of all – have our needs changed in 2019? What are our most urgent needs now?
Do our top priorities reflect the most urgent needs? Why or why not? It’s one thing to know what our people need most, and another thing entirely to act on those needs. Did we place more urgent community needs on the back-burner to advance GENDA? If we did, how is it any different from what advocates have done to trans rights over the years? Are we just perpetuating the cycle of back-burnering the needs of the most marginalized in our communities to advance the agenda of the most privileged?
Who decided GENDA was most important in 2002, and who is deciding the agenda now? Are they the same people? Who was missing from the decision-making table in 2002, and who is missing now? What can we do to change that? Are we ready for different voices? For example, are we seeing mostly white binary people (be they trans or cisgender) with access to money, resources, and political capital running the show back in 2002 and now in 2019? Who is funding this work, and what are the priorities of those funders? Who serves on the boards or steering committees of the organizations leading the charge? Are trans people of color, trans immigrants, non-binary, intersex, disabled or neuro-atypical people represented at all in these spaces, let alone equally represented? If so, are differing opinions welcome, lifted up, amplified, and taken seriously, or drowned out, nay-sayed, or told to wait their turn for their issue to be given priority? In other words, are we creating spaces at the table for activated diversity, where different perspectives are not only welcome but also intentionally centered in all conversations and strategizing? If we are not centering the voices and perspectives of the most multiply marginalized among us, what good is the movement agenda we are pushing?
How is our emotional investment impacting our judgment? This gets to the heart of what I believe happened with GENDA. One way to talk about this point is to use the economic framework of the sunk cost theory: (1) We invest our energy, money, time, labor, political capital today because we believe in the future value we expect to get out of it; (2) We also believe we make rational decisions, and so it’s reasonable to continue making investments toward that future value; BUT (3) we fail to take into account how our emotional investment biases our decision to keep investing in something. We must learn from our mistakes and be more reflective in the future.
Some Ideas for Future Dreams & Agenda Items:
Fix the Human Rights Law to cover all students across New York State, not just those who attend private, non-profit, non-religious schools (~3%)
Push for laws that affirm employment opportunities for/by all LGBTQ+ folks (e.g., creating pipelines for trans entrepreneurism, or demarcating LGBTQ-owned businesses and incentivizing contracts with them like with other minority- or women-owned businesses)
Create a statewide commission or task force to gather data on the efficacy of hate crime law
Lobby for policies to safeguard trans and gender-nonconforming people in jails and prisons
Seek Gender Recognition laws and policies that allow trans, non-binary, and intersex people of all ages to easily access and amend government-issued records and IDs that accurately reflect who they are
Seek Dignity After Death legislation to ensure trans people will be issued death certificates that accurately reflect who they were in life
So much more!
We have not come this far to only come this far. Let’s keep going, onward and upward, together!