For many years, New Yorkers for Constitutional Freedoms has fought on the front lines against efforts by LGBT advocates to redefine gender in the State of New York. The New York Unified Court System is the latest battleground in this conflict.
The Administrative Board of the Courts is considering a proposal to add “gender identity” and “gender expression” as protected antidiscrimination categories in rules governing New York’s courts, judges, and attorneys. The proposal was made by the Richard C. Failla LGBTQ Commission of the New York Courts. NYCF has submitted public comments urging the courts not to adopt the proposed language. We disagree with the proposal for the following reasons:
- The proposal would bar judges from participating in organizations that practice “invidious discrimination” based upon gender identity and gender expression. Of course, no judge should participate in an organization that practices “invidious discrimination” against anyone. However, the proposed ban could (and likely would) be interpreted to bar judges from participation in organizations that believe that sex and gender identity are one and the same, and that it is not possible to change one’s sex.
- The proposal would bar attorneys and law firms from “unlawfully discriminat[ing] in the practice of law” on the basis of gender identity and gender expression. This proposal is problematic because the Human Rights Law does not currently ban discrimination based upon these characteristics. While the Cuomo Administration has issued a regulation (9 NYCRR 466.13) banning discrimination based on gender identity and gender expression, that regulation (a) may not remain in effect once Gov. Andrew Cuomo leaves office; and (b) could be vulnerable to a legal challenge. Given that the current rule bans “unlawful” discrimination, adding a protected category not present in the Human Rights Law would be inappropriate.
- Sensitive issues of gender identity and gender expression within law firms and similar work environments should be left to the discretion of employers.
- “Gender identity” and “gender expression” are vague, debatable, and amorphous terms that create confusion when applied in a legal context. The proposed amendments include no definitions for these terms.
- The proposed amendments are a solution in search of a problem. The Richard C. Failla LGBTQ Commission of the New York Courts has not given any indication that discrimination based on “gender identity” and “gender expression” is happening in the court system or in legal workplaces in the first place. Absent such information, the proposed amendments are unnecessary.
While NYCF believes that every person is made in the image of God and should be treated with respect, we believe the proposed amendments to be ill-advised and respectfully urge that they be rejected.