Gov. Andrew Cuomo has imposed substantial portions of the Bathroom Bill upon the State of New York by fiat.
On January 20, the New York State Division of Human Rights adopted a new regulation—known as 9 NYCRR 466.13—relating to “gender identity discrimination.” As Albany Update has previously reported, this regulation was proposed in November 2015. New Yorkers for Constitutional Freedoms, along with hundreds of like-minded New Yorkers, submitted comments in opposition to this wrong-headed proposal. Not surprisingly, the Division of Human Rights (DHR) paid very little attention to those comments; the DHR made only minor changes to the regulation before adopting it.
The new regulation states that existing laws banning sex discrimination and disability discrimination also prohibit discrimination based upon gender identity. This means that New York’s shopping malls, stores, universities, restaurants, and recreational facilities—along with many other public places—are now required to accommodate crossdressing and so-called gender transitions. New York’s employers are also required to accommodate employees who wish to dress and identify as members of the opposite sex. A failure to accommodate “transgendered” behavior will be grounds for a lawsuit.
Everything about the Governor’s new regulation is wrong.The substance of the regulation is wrong, as the Governor’s action places onerous new burdens upon New York businesses and compromises the privacy and safety of women and girls by allowing men who identify as “transgender” to enter women-only space. The process used to adopt the regulation is wrong because the DHR has, in essence, rewritten the law. Gov. Cuomo may be frustrated that the Bathroom Bill was blocked in the State Senate for the past eight years; however, his frustration does not give him license to bypass the Legislature. As every student with a rudimentary understanding of government knows, it is the executive’s job to enforce the law; making law is a legislative function. The DHR has feebly attempted to justify its “end run” by claiming that the regulation onlycodifies existing practice; if that is, in fact, the case, the DHR has been adjudicating complaints of “gender identity discrimination” without legal authorization.
The Governor and his allies will no doubt laud this new regulation as an effort to protect vulnerable New Yorkers. In reality, this regulation makes New Yorkers more vulnerable. Parents, when men who identify as women claim a legal right to use ladies’ changing areas at public pools, and when those men undress in front of your daughters, you can thank the Governor. Employers, when an employee demands that you address him by a feminine name and allow him to crossdress in the workplace, and when your attorney informs you that you could be found liable for discrimination if you do not comply, you can thank the Governor.
New Yorkers for Constitutional Freedoms is committed to fighting Gov. Cuomo’s latest overreach using all peaceful and legal means at our disposal.