Trans Woman Can Pursue Bias Claim Against Residential Drug Program

BY ARTHUR S. LEONARD | Finding that a transgender woman sent to a residential drug treatment program under a plea agreement had stated sufficient grounds to make a claim of discrimination, a State Supreme Court judge in Brooklyn denied a motion to dismiss a housing bias lawsuit against the program under state and city law.

Justice Debra Silber’s opinion, published on December 12 in the New York Law Journal, came in Sabrina Wilson’s suit against Phoenix House and Sydney Hargrove, the director of its induction unit.

Opening her opinion by noting “there has been a considerable lack of understanding in the courts with regard to issues of concern” to transgender people, Silber provided a lengthy summary of the developing law of gender identity discrimination before turning to the merits of the defendants’ motion.

New York trial refuses to dismiss suit alleging gender identity, disability discrimination in housing

According to Wilson, she told Hargrove during her intake interview that she was a transgender woman but that in a series of encounters, he and other Phoenix House officials essentially treated her as a man. When he asked her if her hair was “real,” Wilson told him she wears a wig and was told that was not allowed at Phoenix House, though she said other women were permitted to wear wigs. Similarly, Wilson claims, a counselor told her that she had to stop wearing high heel shoes, though some other women were allowed to. When Wilson attended group therapy meetings, she was required to sit with the men rather than the women and when some women objected to her attending a women’s support meeting, she was asked to leave.

Wilson claims she complained to Hargrove about being required to share sleeping and bathroom accommodations with men and was told, “You should adjust.” Wilson eventually persuaded the other women to consent to her attending their support meetings, but Hargrove insisted she not do so.

Wilson alleged that during her fourth week in the program, another counselor told her that Hargrove believed she should be transferred to another program because Phoenix House could not meet her needs as a transgender person. If a suitable facility were not found, she was told, she would most likely be sent to jail. Thirty-eight of her fellow residents signed a petition asking Hargrove to reconsider his decision, but he made no formal response and did not tell Wilson where she might be transferred. When Phoenix House failed to find an alternative program, Wilson gave up hope and left Phoenix House without permission, in time relapsing and then being resentenced to prison, where she spent two and a half years.

Wilson made both gender identity and disability discrimination claims, the latter based on prior cases in New York establishing that people who experience bias based on their “gender identity disorder” qualify for relief under disability discrimination provisions of the law.

Phoenix House argued that as a residential treatment facility –- which it distinguished from a “dwelling” –– it was not subject to state and local laws forbidding housing discrimination.

It also claimed that Wilson did not qualify for protection as a person with a disability, and that even if she could pursue her claims, she was limited to ordinary damages, but was not eligible to receive punitive damages or for the injunction she seeks requiring Phoenix House to alter its policies and train its staff regarding transgender issues.

Silber agreed with Wilson that she can pursue a disability discrimination claim. Claims of gender identity discrimination can clearly be made under the transgender rights provisions of the city's human rights law, and even before those were enacted, state courts had found that transgender people encountering discrimination could seek relief under both state and city laws since the concept of sex and gender is broadly construed under both.

Silber also found that, in prior cases, residential programs operated under government contract were found to fall under provisions of state and local law banning housing discrimination. Wilson was at Phoenix House for treatment, but she was required to live there and so it was her dwelling place. Under both state and local law, the judge concluded, a residential facility has the obligation to make reasonable accommodations for people with disabilities to give them equal opportunity to benefit from the services provided.

Though Silber agreed that Wilson could not seek punitive damages and injunctive relief under state law, she could do so under city human rights law, the judge found.

Wilson’s complaint charged Hargrove with aiding and abetting Phoenix House’s discrimination against her. His argument for dismissal, tracking Phoenix House’s motion, was that because there was no valid discrimination claim, he could not be liable for “aiding and abetting” discrimination. So, like Phoenix House, he failed in his motion to dismiss.

Silber ordered the defendants to file their answer to Wilson’s complaint within 30 days, and then discovery will begin unless a settlement is negotiated.

Wilson is represented by Armen Merjian of the AIDS services group Housing Works, who, in a written statement, said, “Rather than contest the facts, Phoenix House moved to dismiss, asserting that the Human Rights Laws should not apply to their program. We are delighted that the Court has affirmed that Phoenix House is not above the law, and that transgender folks and others have a right to challenge odious discrimination in this and analogous settings.”

Taking note of Silber’s comments regarding the “considerable lack of understanding in the courts” of transgender concerns, Merjian commended the judge for “enhancing that understanding.” He specifically pointed to Silber’s recognition that transgender individuals face greater risk for harassment, assault, and rape in prison “and therefore programs such as defendants’ are even more critical for them.”

Phoenix House did not immediately respond to an email seeking comment.