NY transgender protections rely on 1945 law

ALBANY -- Gov. Andrew Cuomo’s move to provide legal protections to transgender New Yorkers hinges on interpreting the word “sex.”

Cuomo late Thursday introduced regulations that would legally prevent New York employers, businesses and housing providers from discriminating against transgender individuals and those with gender dysphoria.

Within hours of Cuomo’s proposal, conservative groups pushed back, questioning whether the governor has the legal authority to install such rules. The Cuomo administration has stood its ground, with one official calling the plan a “progressive interpretation” of a law that first took effect in 1945.

“It is my opinion that in 2015, it is clear that the fair, legal interpretation and definition of a person’s sex includes gender identity and gender expression,” Cuomo said Thursday night.

The regulations — which will be put out for public comment next month before they take effect — are based on the state’s Human Rights Law, which was originally passed 70 years ago.

Essentially, the new regulations make clear that the word “sex” refers not only to gender, but also “gender identity and the status of being transgender.” The word “disability” would apply to gender dysphoria, which is when someone is medically recognized as having a different gender than they were assigned at birth.

So when the Human Rights Law prohibits discrimination based on sex or disability, the regulations would make sure those protections apply to transgender individuals and those with gender dysphoria, too.

Cuomo’s move was lauded by advocates for the lesbian, gay, bisexual and transgender community, who have long pushed unsuccessfully for the change to be made through legislation.

Conservative groups, meanwhile, have already raised the possibility of a legal challenge. They have previously dubbed the proposal the “bathroom bill,” often raising arguments about entering gender-exclusive bathrooms.

“All options are on the table right now, and that’s something we’re certainly looking at,” the Rev. Jason McGuire, executive director of New Yorkers for Constitutional Freedoms, said of a potential lawsuit. “You can’t tell me that in 1945 they were anticipating this issue of gender identity and gender dysphoria.”

He continued: “I just don’t think the governor is on good legal ground on this.”

Any lawsuit would be filed in a New York court system that has been reluctant to rescind rights after they’ve been granted, and Cuomo’s administration maintains it is on firm legal footing.

McGuire’s group, a religious conservative organization based in Spencerport, Monroe County, has challenged Cuomo in the courts before.

In 2011, after Cuomo and the state Legislature approved same-sex marriage in New York, the group challenged the law on a variety of procedural and legal grounds. The lawsuit was ultimately unsuccessful.

Cuomo announced the new regulations at the Empire State Pride Agenda’s annual dinner Thursday night in Manhattan, where he was praised by advocates who have long pushed for broader anti-discrimination rules.

“After years of tireless advocacy, we’ve won a tremendous victory for transgender civil rights with Governor Cuomo’s announcement tonight,” said Nathan Schaefer, the group’s executive director.

LGBT advocates had spent years pushing legislation known as GENDA, or the Gender Expression Non-Discrimination Act, which would have installed similar protections.

But while the Democratic-led Assembly had passed it eight times, it has long stalled in the state Senate, which is now in Republican control. A spokesman for Senate Republicans did not return a request for comment Friday.

Assembly Minority Leader Brian Kolb, R-Canandaigua, Ontario County, said he had not had a chance to review Cuomo’s proposed regulations yet.

But Kolb raised concern about Cuomo bypassing the state Legislature, noting that Cuomo also implemented a minimum-wage hike for fast-food workers without the Legislature’s approval earlier this year.

“Should he be bypassing the Legislature? The answer is absolutely not,” Kolb said. “That’s why we have three branches of government. That’s the fundamental source of our democracy.”

During his speech Thursday night, Cuomo said the move was “long overdue.” He said the new rules will be “the most sweeping in the nation,” applying to public and private people, businesses and facilities.

“It is intolerable to allow discrimination of transgender individuals, and they are one of the most abused, harassed groups in society today,” he said. “Well it is New York state’s role, New York state’s responsibility, and New York state’s legacy to lead the way.”

JCAMPBELL1@gannett.com

Twitter.com/JonCampbellGAN