Trans Rights Challenged in NY Ruling

Appeals court ruling on Hispanic AIDS Forum suit finds bathroom use can be restricted

By a 4-1 vote, a panel of the New York Appellate Division, First Department, has dismissed a discrimination case brought by the Hispanic AIDS Forum against a Queens landlord, who allegedly refused to renew the group’s lease because other tenants in the building complained about transsexual clients of the agency using the public restrooms.

The opinion and dissent issued by the court on March 29 show a fierce argument between the court majority and dissenting Justice David Saxe over what the case is about and what legal issues the court should have been deciding.

The ruling is particularly significant because the majority of the court expressed agreement with the reasoning of a 2001 decision by the Minnesota Supreme Court, in Goins v. West Group, which found that it did not violate a statutory prohibition on gender identity discrimination for an employer to exclude a transgendered employee from using the restroom designated for her desired sex. In that case, a male-to-female transsexual was excluded from using the women’s restroom after other women employees complained, and the court said that an employer was justified in barring someone the employer considered to be male from using the women’s restroom.

Saxe argued that it was premature for the Appellate Division even to rule on that issue in the context of this case, which did not raise the question directly under his reading of the plaintiff’s complaint.

The dispute arose in 2000 as the Hispanic AIDS Forum (HAF) was negotiating a five-year renewal lease on office spaces it was renting at 74-09 37th Avenue in Jackson Heights. HAF, a non-profit that provides AIDS education and counseling in the Latino community, had recently initiated a special outreach to the transgender community which resulted in groups of transgendered clients coming to the offices for meetings and programs.

HAF understood that it had a binding renewal lease to take effect May 1, but, according to the group’s legal filing, after its representatives signed the lease, the building’s office manager, Dorothy Novotny, informed them that the landlord had decided not to renew because of complaints from other tenants about “men who think they’re women” using the women’s restrooms. The way the space was set up, HAF shared restroom facilities with other tenants of the building.

In the complaint that HAF subsequently filed against the landlord, it alleged that Jeff Henry, the property manager, told Leon Quintero, HAF’s attorney, that the lease would not be renewed unless the group agreed in writing that its transgendered clients would not use the building’s public restrooms. HAF received an eviction notice on June 30, 2000, and the landlord initiated eviction proceedings in the Housing Court. HAF agreed to move out while preserving its right to sue for discrimination, and it subsequently filed a claim in Supreme Court, New York County, where the landlord’s business office is located.

At the time, neither the New York State Human Rights Law nor the New York City Human Rights Law expressly banned gender identity discrimination. Both prohibited sex discrimination in housing and places of public accommodation, and the City Human Rights Law at that time also prohibited sexual orientation discrimination. Several state court rulings, including a famous 1970s case involving transgendered tennis pro Renee Richards, had accepted discrimination claims by transsexuals under either the sex or sexual orientation discrimination laws.

In this case, the landlord filed a motion to dismiss, claiming that neither state nor city law at that time forbid discrimination based on gender identity or expression.

Justice Marilyn Shafer denied the motion, and the landlord appealed, winning a dismissal from the Appellate Division.

According to the court’s opinion, not attributed to any particular member of the panel, “the complaint, as it stands, fails to state a cause of action regardless of the applicability of the statutes to transgender individuals.”

The majority of justices came to this conclusion because they read the complaint as alleging the landlord discriminated in refusing to renew the lease because male-to-female transsexual clients of the agency were using the women’s restroom facilities, and not—as Saxe read the complaint—that the landlord was insisting that transsexual clients not use any of the building’s public restrooms.

“The complaint, as it stands, alleges not that the transgendered individuals were selectively excluded from the bathrooms, which might trigger one or both of the Human Rights Laws, but that they were excluded on the same basis as all biological males and/or females are excluded from certain bathrooms—their biological sexual assignment,” the majority wrote.

On this point, the majority agreed with the reasoning of the Minnesota court.

“The defendant’s designation of restroom use, applied uniformly, on the basis of ‘biological gender,’ rather than biological self-image, was not discrimination,” the court ruled.

Saxe objected that the majority had misread the complaint, which clearly indicated that the landlord was insisting that the transgendered clients not use any of the public restrooms. Since there had not yet been any evidence discovery in the case, Saxe argued, it might not be necessary for the court to answer the contentious question regarding whether transgendered clients had the right to choose which bathroom to use.

“For purposes of this motion,” wrote Saxe, “the claim that issuance of a renewal lease was conditioned on the exclusion of plaintiff’s transgender clients from public portions of the building, and in particular the bathrooms—all the bathrooms—asserts enough to state a claim under the City and State Human Rights Laws. The question of what actually occurred and whether it amounted to discrimination must await the development of a factual record.”

This decision lends weight to arguments by civil rights advocates at the state level that the addition of gender identity and expression to the State Human Rights Law is still needed, and, furthermore, that the Legislature should directly address the issue of restroom discrimination, which has been central to so many cases involving discrimination claims by transgendered people.