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TESTIMONY OF DENNIS DELEON ON INTRO. 754
Before the General Welfare Committee
May 4, 2001
Good afternoon Mr. Chairman, Members of the General Welfare Committee and
other Council Members. Please accept my gratitude for the opportunity to
address the important issues raised by Intro. 754.
My name is Dennis deLeon. I am the President of the Latino Commission on
AIDS. From 1982 to 1988, I served as Senior Assistant Corporation Counsel in
the New York City Law Department, assisting in litigation, advising agencies
on issues of equal employment discrimination law, working with the New York
City Commission on Human Rights and several other responsibilities. I
served as Chair/Commissioner of the New York City Commission on Human Rights
from March 1990 to January 1994.
During my tenure as Chair of the Commission I had the opportunity to lead an
agency of incredibly dedicated workers that enforced the New York City Human
Rights Law, responded to bias incidents, studied and issued reports on
various aspects of human rights law enforcement, educated groups of
employers, landlords and the operators of public accommodations on how the
law applies to them and many more functions. This tradition of quality,
compassion and commitment is still present to this day under the leadership
of Commissioner Marta Varela with the support of Mayor Rudolph Giuliani.
During my tenure as Commissioner I became aware of the pervasive
discrimination in employment, housing, and public accommodations suffered by
those whose gender identity or expression does not accord with the gender
conventionally associated with their birth sex - people whom we used to call
"transsexual" but today may simply call 'transgendered.'"
The information about this discrimination came to the Commission's attention
in incidents of violence that were not then categorized by the Police
Department as bias violence. In addition, there was a transgendered
attorney in the Law Enforcement Bureau of the Commission who shared her
experiences and those of others in the community. She spoke of being denied
tables in restaurants, being denied jobs in the legal profession and mocked
on the streets. The pain and uncertainty she reported was echoed by
individuals she referred to the Commission for assistance.
At the staff level of the Commission, there was uncertainty as to whether
discrimination based on gender identity or expression was covered by the
City Human Rights Law. Line staff would sometimes turn a transgendered
person away from trying to file a complaint, not because of malice but
simply from confusion about the coverage of the law. To address this issue,
the Commission provided training to staff on the issues faced by
transgendered persons. In addition, there were instructions were given to
staff that discrimination and bias incidents against transgendered people
were covered by the New York City Human Rights Law. It would have been
useful to have had the language of "gender identity or expression" to use
with staff, but such language is of more recent vintage.
After this initial staff level education process, I continued to hear of
problems of discrimination faced by persons of different gender identities.
In most cases the landlord or employer did not see the discrimination as a
violation of the Human Rights Law. When confronted, several equal
employment professionals in different business settings reported that the
language of the statute was unclear in its coverage.
This ambiguity in the language of the law resulted in basic rights to
employment and housing being denied to transgendered people because of the
lack of explicitly transgender-inclusive language such as 'gender identity
or expression. I concluded that the wording of the human rights law did not
give adequate notice to employers regarding the coverage of gender identity
We have to keep in mind why the language of the Human Rights Law is
important. There is a large and professional equal employment
infrastructure in many private companies whose responsibilities include
making sure their employers do not run afoul of the Human Rights Law. These
professionals often times depend on the words of the City statute for their
guidance as do the lawyers that advise them. The absence of specific
reference to gender identity or expression in the statute told these
individuals that there was no bar in refusing to hire a transgendered person
because it "offended" the culture of the company.
While it might have been useful for the Commission to have implemented an
educational campaign to make employers aware that the City Human Rights law
has been interpreted to protect at least post-operative transsexuals and
possibly transitioning transsexuals as well - the level of confusion and
uncertainty regarding the ambiguous language of the statute continued to
bedevil attempts to address discrimination against persons with diverse
gender identity or expression.
The sheer number of employers to be reached in large and small businesses
for such an education initiative alone without a statutory change would have
made such a task difficult and unlikely to yield results for sometime to
come. Employers, landlords and business operators could always intuitively
dispute this interpretation if the language of the law was not clear.
As a result of these observations and experiences, I have concluded that in
addition to the education of employers, business operators and landlords,
there had to be a specific reference in the statute that would settle the
question of coverage beyond doubt. Most employers wanted to "do the right
thing" and not discriminate. The problem was and is that they did not know
what the law covered.
Beyond the issue of a lack of clarity among employers, there was also the
problem of the lack of notice to the community of persons with diverse
gender expressions. Because the law does not clearly state that it covers
all persons with diverse gender identities, many persons do not realize they
have rights against employment, housing and public accommodation
People that advise transgendered individuals often do not realize there may
be a remedy. Keep in mind that some of the attorneys practicing
discrimination law have little experience in how the statute might be
interpreted by those "in the know" at the Human Rights Commission or the Law
Department. The fact that the law "may" cover persons of diverse gender
identities should not be a secret, shared strictly among regular
practitioners before the Commission. The specific inclusion of "gender
identity and expression" will have the effect of increasing the likelihood
that possibly meritorious complaints will be filed with Commission to
address real and perceived grievances.
I have reviewed the memorandum issued by the Law Department of the City of
New York on this issue. I have enormous respect for the work of Mr. Jeffrey
Friedlander and Martha Mann Alfaro. They are excellent lawyers and the City
is indebted to their dedication and excellence. Their memo concludes that
transgendered persons are already covered under the Human Rights Law.
Because of this memorandum, some have concluded that there is no need for a
change in the law. I strongly disagree with that conclusion.
First, the Law Department asserts that transgendered persons could be
considered mentally ill and thus covered under the portion of the law
protecting those disabled persons with "physical, medical, mental or
psychological impairment." The difficulty with such an argument is that it
relies on reasoning harmful to the interests of persons with diverse gender
identities. Most people with diverse gender identities or expressions do
not consider themselves as having a "mental or psychological impairment."
They want to be seen, as we all do, as people that can work, be housed and
access services in the same way any other person would.
In my experience, most members of these communities do not consider
themselves to be disabled and do not want to be seen that way. Any reliance
on such reasoning sends the wrong signal to employers, landlords, and
providers of public accommodations, labeling as pathological a community
most of whose members do not suffer from any mental illness.
Can you imagine what would have been the reaction of the Lesbian and Gay
community if legislators had told advocates that there is no need for a
human rights law that includes "sexual orientation" because they are
considered mentally ill and already covered as disabled? Don't forget that
it was not that long ago when the psychiatric profession saw homosexuality
as a mental illness.
Second, the memo also concludes that transgender persons are already covered
because the term "gender" has been read in two New York opinions, one
administrative and the other judicial, and in a City Council hearing on the
Gender Motivated Violence Act to include these individuals.
With due respect to my former colleagues, I do not agree that this level of
legal precedent provides the kind of notice needed by employers, landlords
and business operators. Most of these persons and their lawyers do not have
access to the transcripts of City Council hearings, have never read the one
administrative and the other judicial opinion on this issue and have no
access to the Law Department memo of March 1, 2001.
No one should have to call up the Human Rights Commission Law Enforcement
Bureau to learn whether you are person covered by the City law or, as an
employer, whether a person with distinctive gender expression is in fact
protected against discrimination.
It should be transparent in the words of the statute that discrimination
based on gender identity and expression is illegal. This is what people
The Law Department's memo itself illustrates the difficulty in relying on
"gender" with no explicit definition of the term. The memo uses the term
"transgender" interchangeably with "transsexual," though most transgendered
people are not in fact transsexual and do not identify as such. There is a
diversity of the communities of persons with diverse gender identities and
expressions that are not covered by the current statute or caselaw. It is
the very ambiguity of the law that this legislation is intended to address.
The proposed amendment to the City Human Rights law would tell this vast and
diverse community that any form of discrimination based on gender identify
or expression gender is illegal.
In conclusion, let us not ignore one of the basic purposes of the City Human
Rights law - to give notice to those who may have been the objects of
discrimination and to their potential discriminators of what is legal and
illegal. There are a lot of good intentioned people who need a clear
statute that settles the question. And please, let us not rely on a
rationale that insists that people with diverse gender identities have to
declare themselves mentally ill in order to exercise their basic civil
But we cannot stop with a change in the statute no matter how clear. There
must be an extensive public campaign that educates the community of
landlords, employers and business operators that there will be a price to
pay for discrimination based on gender identity and appearance.
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