This week President Donald Trump revoked guidance the Obama Administration issued to public schools, telling them to allow transgender students to use the bathrooms of their choosing. For many LGBT advocates, this is the first shot across the bow in what they expect to be a large-scale assault by the Trump administration on rights and protections for LGBT individuals. The revocation of the guidelines puts the onus back on states to decide how to treat transgender students.
Gov. Andrew Cuomo publicly disagreed with Trump’s move, and has said he will have the department of education reaffirm that the rights of transgender students in the state have not changed. Advocates say Trump’s move hasn’t changed that transgender students in New York are protected from discrimination but they note it does serve as a warning that New York has more to do to protect LGBT rights.
While Gov. Cuomo and other New York elected officials have pledged to protect New Yorkers’ rights, advocates and legislators say New York state is in no position to act to protect LGBT rights because Republicans control the state Senate, in part, thanks to a group of renegade Democrats–and Sen. Simcha Felder, a Democrat who conferences with Republicans. In fact, advocates say the State legislature has done little to nothing to advance LGBT rights since passing marriage equality in 2011–thanks to the Republican-controlled Senate.
Attorney General Eric Schneiderman said he will still continue to enforce the recommendations and the state’s protections for transgender individuals, but it is unlikely the legislature or Cuomo will be able to advance further protections.
Advocates and Democrats have tried for years to pass the Gender Expression Non-Discrimination Act (GENDA)–legislation granting protections in law to gender-nonconforming individuals–and a ban on gay-conversion therapy. They’ve been thwarted at every turn by Senate Republicans and the Independent Democratic Conference, which has caucused with Republicans, providing them with the majority they wouldn’t otherwise enjoy.
“Through his actions, Trump has declared open season on our nation’s most vulnerable citizens. I intend to stand against this hateful measure by any means necessary,” Sen. Brad Hoylman (D-Manhattan) said in a statement.
Hoylman may not have many options in his position as State Senator. His office offered a report in 2015 called “Stranded at the Altar: The New York State Senate’s Willful Inaction on Post Marriage LGBT Legislation.” The report details how the Republican-controlled Senate has refused to take up bills having to do with LGBT issues since it passed legislation allowing same-sex marriage in 2011.
Republicans allowed that vote under very specific terms and after intense campaigning and lobbying by major electeds and the business community. Most Senate Republicans voted against the legislation. No debate or comments about the bill we’re allowed on the floor. A number of Republican senators made it clear that they found the bill hard to stomach.
“The idea that we we’re dealing with a new progressive group of Senate Republicans was something we were all quickly disabused of,” one LGBT advocate told The Alt, on the condition of anonymity. “The guys who voted for marriage are gone and the GOP regard marriage equality as one of their biggest mistakes.”
Since the equality vote Hoylman, Assemblywoman Deborah Glick (D-Manhattan) and a host of other Democratic legislators have tried to pass GENDA, a bill guaranteeing protections for non-gender-conforming individuals, and a bill to ban gay conversion therapy–a debunked process by which therapists use talk therapy, apply shock treatment or treat the individual as though they suffer an addiction akin to alcohol or drug dependence. Vice President Mike Pence is a strong supporter of gay conversion therapy.
Hoylman said that he has been advised that any bills with references to LGBT have no chance of getting to the floor in the Senate. “Since 2011, not a single stand-alone piece of legislation that has LGBT in its wording has come to the floor,” said Hoylman. “We had to remove all references to LGBT people in a bill that dedicated land to a park at Stonewall. We were told otherwise it would be a nonstarter.”
Hoylman also points to a resolution passed last year to honor the victims of the Pulse Nightclub massacre. “There was no reference to LGBT or Latino people,” said Hoylman. “In my opinion it was scrubbed of all humanity.”
While Democrats, who have far more pro-LGBT members, have had the opportunity to take control of the Senate, they have been thwarted by the Independent Democratic Conference and Sen. Simcha Felder (D-Brooklyn). Felder caucuses with Republicans and the IDC votes for the power structure that puts Senate Republicans in place. In the past they have directly worked with the Republicans to keep them in power.
Glick said that LGBT issues are “hostage” to Republicans and the IDC. But she said she believes that by taking executive action on conversion therapy and GENDA, Cuomo has relieved some of the pressure they would otherwise face from LGBT advocates .
Asked whether Sen. Jeff Klein (D-Bronx) who leads the IDC supports bringing GENDA and the conversion ban bill to a vote, Candice Giove spokesperson for the IDC provided The Alt with this quote. “Every member of the Independent Democratic Conference supports GENDA and the ban on gay conversion therapy. The Independent Democratic Conference supports transgender students across the state who are protected under the Dignity for All Students Act, and we will not allow the Trump administration to make any child feel unsafe in school.”
A spokesperson for Senate Republicans did not return requests for comment.
Governor Cuomo has some executive power to circumvent the legislature on issues the executive branch has direct control over. However, those actions can be rescinded by future Governors.
On Feb. 16, 2016, Cuomo issued a set of regulations banning public and private insurers from covering gay conversion therapy. “We will not allow the misguided and the intolerant to punish LGBT young people for simply being who they are,” Cuomo said in a statement at the time.
Glick said that action is hollow, in that most insurers didn’t cover the therapy to begin with. “He is covering to some extent–he puts out an executive order and it looks nice–saying no insurance can cover it (but a very small percentage of insurers were covering it anyway); most insurances don’t cover basic therapy visits these days.”
Eoghann Renfroe of the Empire Justice Center said that Cuomo’s regulations “have been extremely helpful” but that having them as law is important and something the Empire Justice Center is working toward. “We hope the Senate sees they’ve had no detrimental effects on society since taking effect in 2015. Folks have just more easily have access to their rights in employment and healthcare.”
Chad Putman, an LGBT advocate who ran for the State Senate as a Democrat last year against now-Sen. James Tedisco, said that he feels Cuomo strings along the LGBT community in order to galvanize their support at election time. “I think he’s holding onto GENDA as something he can campaign on to insure support from the community.”
The Cuomo administration did not return requests for comment.
On Oct. 22, 2015, Cuomo implemented a set of regulations that protect individuals from discrimination based on their gender identification under the state’s human rights law. “These regulations affirm that all transgender individuals are protected under the State’s Human Rights Law, and all public and private employers, housing providers, businesses, creditors and others should know that discrimination against transgender persons is unlawful and will not be tolerated anywhere in the State of New York,” read the press release announcing the action.
Advocates note that unlike executive orders the Governor has issued to deal with criminal-justice issues, these regulations will be harder to repeal by a Governor who does not disagree with them. They can, however, be repealed after a review.
Cuomo unveiled the action at the Empire State Pride Agenda gala. Many saw the state’s major gay-rights political-lobbying organization as adrift since winning marriage equality in the state. GENDA had been one of its major priorities, and later in 2015, The Pride Agenda announced it would disband, despite outcry from advocates that Cuomo’s October action had not actually changed the law and was not permanent.
The result of the disbanding has been destabilizing and has left LGBT advocates without a solid, dedicated voice in state politics, said Glick and Hoylman (above, at a Feb. 4th rally at the Stonewall National Monument in Manhattan). “Without the Pride Agenda doing advocacy and politics I think these issues have suffered,” said Glick, who pointed out that most of the state’s LGBT organizations are now local nonprofits that are focused on providing services and sustaining their funding–not lobbying for legislation.
“Right now there’s a vacuum in the LGBT community,” said Putman. “There are LGBT centers around the state, but they can’t do much advocacy and they don’t have a statewide organization galvanizing the cause.”
Renfroe noted that localities across the state have adopted GENDA legislation. Albany and Troy both have such protections while Schenectady does not. “Folks who are concerned can push their localities to do what other localities have done and codify transgender rights into local law,” said Renfroe. He said it would be preferable to have the same law across the state. “I would encourage them to continue to invest more in local issues because government at the local level needs more attention than ever before.”
On June 14, last year Hoylman spoke about the resolution the Senate put forth honoring the victims of the Pulse Nightclub shooting. He said, “I want to express my disappointment, Mr. President, whether it was a colossal oversight or an intentional admission, nowhere do the words LGBT or Latino read in this resolution. I think that is a mistake, because frankly I think one could argue we are trying to rewrite an important moment of LGBT history. I don’t think we should be expunging words like transgender, gay, bixesual, Latino from resolutions as important as this, and if we’re not recognizing these words, Mr. President, we’re not recognizing the people that lost their lives and their loved ones who are suffering today. Our community has fought too hard to get people to understand that silence equals death.”