Did Gym Owners Torpedo GENDA?

Following the failed effort to move the Gender Expression Non-Discrimination Act through the New York state Senate Judiciary Committee, state Senator Thomas Duane, who is openly gay and represents Chelsea, denounced the Senate as a “cesspool of homophobia and transphobia.”

Notwithstanding Duane’s thoughts on the June 8 12-to-11 vote, the more likely explanation is that until November 2008 Republicans were the majority party in the state Senate for more than 30 years. Democrats are barely clinging to their 32-to-30 majority and Republicans, with a chance to get back on top this coming November, see no reason to hand them a victory of any sort.

Republicans have shown that they can be very disciplined when it comes to hewing to the party line. Every single Republican and eight Democrats banded together to defeat a gay marriage bill last December in a 38-to-24 vote.

Speaking at a December 3 rally following the marriage vote, Deborah Glick, an Assemblymember and out lesbian who represents the West Village, said “Too many times for too many years we have seen that there is party discipline on the Republican side.”

The act, which has easily passed the Democrat-dominated state Assembly three times since 2008, bans discrimination based on gender identity and expression. It adds protections for transgender persons to the state human rights, education, and hate crimes laws. The gay and transgender communities have tried to pass the legislation since 2002. With the June 8 defeat, however, the recriminations began.

Posting on bilerico.com, some commenters blamed the Empire State Pride Agenda, the statewide gay lobbying group, saying it had not done sufficient lobbying work on the gender bill. The Pride Agenda, working with Housing Works and Queer Rising, held a webinar on the gender bill in April of this year then the groups had an Albany lobby day on the bill on May 11.

One commenter on towleroad.com, posting anonymously, blamed Duane for the vote. Many commenters in the gay blogosphere focussed their rage on Ruben Diaz, a Bronx senator and the only Democrat on the committee to vote against the gender bill. Diaz has been a consistent opponent of queer community causes.

Other usual suspects, the state Conservative Party, for instance, opposed the gender bill not that Republicans needed any prompting from their right wing friends. One opponent was unusual, the International Health, Racquet and Sportsclub Association.

The association represents over 9,000 health clubs and 650 suppliers nationally with 285 member clubs in New York. It submitted testimony saying “while IHRSA unquestionably supports any legislation that guarantees equal protection for all citizens...we cannot support this legislation in its present form. We request that any legislation intending to protect the liberties of individuals, regardless of their gender identity or expression, be constructed in such a way that it does not encroach on the privacy rights of other citizens.”

The issue? Bathrooms and locker rooms. The legislation would “prohibit a health club from preventing a health club user access to any locker room as long as their ‘expressed’ or ‘perceived’ gender identity is consistent with the sex to which the locker room is assigned,” the association asserted.

The association wanted “the bathrooms or locker rooms of a health club, or a place of exercise established for the exclusive use of individuals of the same sex” exempted from the bill’s provision. The problem with such an exemption is that it forever bans transgender people from these places which appears to violate the spirit if not the letter of non-discrimination laws.

At first blush, the association’s stance would seem to be irrelevant as Republicans were probably going to oppose this bill in any case. What the association’s testimony did do was give opponents cover at the June 8 committee meeting.

“One of the main arguments against this bill seems to be the issue of access, unfettered access to bathrooms, locker rooms,” said Senator George Winner, a Republican who represents four western New York counties, as he brandished the association’s testimony. “Is that a valid objection or valid point?”

Winner said later “Why don’t we amend the bill to put that objection in?...It seems it would be pretty easy to take this number one argument off the table...It must be pure obstinacy not to take that into consideration.”

Democrat Diane J. Savino, who represents parts of Brooklyn and Staten Island, asked that the committee not “trivialize this bill into a bathroom bill” and said later “With respect to the usage of bathrooms, transgender people use bathrooms now. They come into the ladies room all the time and I accept them as they appear.”

The association made the same argument in opposing a gender non-discrimination law in Massachusetts last year. That bill has not yet received a vote in that state’s legislature. It appears to have successfully made this argument elsewhere.

Testifying in Massachusetts last year, Jennifer Levi, director of the Transgender Rights Project at Boston’s Gay & Lesbian Advocates & Defenders, a gay rights law firm, said that such problems had not come up in the 13 states that currently bar discrimination based on gender identity.

“We should not allow safety concerns to become a proxy for prejudice against transgender people,” Levi was quoted saying on clubindustry.com. “A full 37 percent of the American population, in 13 states, live in an area covered by a transgender-inclusive anti-discrimination law, and there have been no reported incidents involving a transgender person threatening the safety of anyone else in a restroom facility.”