New York Advances LGBTQ Protections, While Supreme Court Permits Ban of Transgender Service Members During Pendency of Litigation Challenging Ban

January 29, 2019

By Francine Foner, Esq. and Ty Hyderally, Esq.

After passing the New York Assembly 11 times over the past decade, on January 15, 2019, the Gender Expression Non-Discrimination Act (GENDA) was finally passed by the New York Senate.  The bill is expected to be signed by Governor Cuomo, who issued the following statement on his official website about the new law:

At a time when the federal government is doing everything it can to roll back the hard won rights of transgender Americans, New York State is once again stepping up for full equality and equal protections under the law. We were the first state in the nation to issue regulations prohibiting harassment and discrimination on the basis of gender identity and expression, and continue to fight this federal administration’s despicable attacks on trans people. This is an issue of basic fairness, and today marks an historic day for those in the LGBTQ community who fought tirelessly for the passage of this bill. I applaud the Legislature for acting quickly to pass this critical component of our Justice Agenda.

(https://www.governor.ny.gov/news/statement-governor-cuomo-passage-genda).

Although the existing anti-discrimination law in New York includes sexual orientation as a protected category, until now “gender identity” has not been expressly protected against discrimination. GENDA adds “gender identity or expression” to the categories that are afforded protection against discrimination in housing, employment and public accommodations in New York. Further, GENDA broadly defines “gender identity or expression” as “having or being perceived as having a gender identity, self-image, appearance, behavior or expression whether or not that gender identity, self-image, appearance, behavior or expression is different from that traditionally associated with the sex assigned to that person at birth; further includes offenses regarding gender identity or expression within the list of offenses subject to treatment as hate crimes.”

On the same day, New York also passed a bill which bans LGBTQ conversion therapy and is strongly endorsed by the Cuomo administration. Governor Cuomo praised this bill as an “important bill” which he stated is “sending a clear message that no one should be tortured for being who they are and we will stand for nothing short of absolute acceptance and full equality. I applaud the legislature for taking this decisive action to ban conversion therapy and protect LGBTQ youth.”

Ironically, during the same month that New York passed landmark legislation to protect the rights of LGBTQ individuals, the Supreme Court issued a decision undermining the rights of transgender military personnel. In a tweet, President Trump announced on July 26, 2017, that the U.S. military would not allow transgender individuals to serve “in any capacity.” As was later clarified in lawsuits challenging the ban, under Trump’s policy, transgender persons who have a history or diagnosis of gender dysphoria and who may require “substantial medical treatment, including medications and surgery,” are disqualified from military service, except under certain limited circumstances. Karnoski, et al. v. Trump, et al., No. 2:17-cv-1297 (MJP). Also, “Transgender persons who require or have undergone gender transition are disqualified from military service.” Id.

Several military personnel and candidates challenged the ban in federal courts and successfully obtained preliminary injunctions during the fall and winter of 2017, which blocked implementation of the ban on military service by transgender individuals, during the pendency of the litigation. However, on January 22, 2019, the Supreme Court, by a vote of 5-4, ruled to stay the lower courts’ preliminary injunctions. Thus, the ban can be implemented to preclude service by most transgender individuals during the litigation on this issue.

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