November 11, 2015 Practice Points

NY Governor Cuomo Expands Human Rights Law to Include Transgender People

By Handel Destinvil

On October 22, 2015, during an Empire State Pride Agenda event, New York State Governor Andrew Cuomo stated his "executive action intended to protect transgender people from discrimination in housing, employment and other areas."

Said Cuomo, "It is clear that the fair legal interpretation and definition of a person's sex includes gender identity and gender expression. It is intolerable to allow discrimination of transgender individuals, and they are one of the most abused, harassed groups in society today."

New York State currently prohibits discrimination against gays, lesbians, and bisexuals on the basis of sexual orientation, specifically through the Sexual Orientation Non-Discrimination Act, however, the New York State legislature has not passed a new bill extending such protections to transgender New Yorkers.

Governor Cuomo has stated that he holds authority for executive action in this area under Executive Law 2995, which specifically grants the New York State Division of Human Rights the authority to "promulgate regulations of the state's Human Rights Law." Although the Human Rights Law as passed by the state legislature would not itself be amended, the new additions that apply to the law would grant the New York State Division of Human Rights power to enforce the regulations with the force of law.

The executive action by Governor Cuomo comes in the wake of a July 2015 decision by the Equal Employment Opportunity Commission, which held that "existing civil rights law bars sexual orientation-based employment discrimination." workers. In addition, nearly 20 states have adopted protections for transgender people, according to the Human Rights Campaign, a gay rights advocacy organization based in Washington. 

As for New York State, the proposed regulations are to be entered into the state registry for a 45-day comment period, and in practical effect, would expand definitions of 'sex' and 'disability' discrimination to include gender identity, gender expression, and gender dysphoria.

The executive action by Governor Cuomo affords practitioners in the area of Transgender Rights and Civil Rights Law a new avenue for advancing their clients' causes of action in an area where there has not previously been clear legal protections.

Keywords:  minority trial lawyer, litigation, Andrew Cuomo, New York State, discrimination, transgender, Human Rights Law

Handel Destinvil is assistant corporation counsel for the City of Newark Law Department in Newark, New Jersey.

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