Victory for NYC Gender Identity Protections

BY ARTHUR S. LEONARD | A New York State trial judge in Brooklyn rejected the New York City Transit Authority’s argument that city law banning gender identity discrimination in places of public accommodation is unconstitutional as applied to a claim that a transit worker directed transphobic language at a member of the public seeking assistance in using a Metrocard.

In a decision dated December 29 but not released to the parties until January 21, Supreme Court Justice Kenneth P. Sherman denied a motion for summary judgment by the TA and the accused transit worker, while granting a motion by the city’s Law Department to intervene in the case to defend the anti-bias law’s constitutionality.

Judge finds transit authority not exempt; no First Amendment shield for transphobic employee comments

The lawsuit arose from two incidents in July 2006 when Tracy Bumpus claims to have been the victim of transphobic verbal harassment by Lorna Smith, a transit worker on duty at the Nostrand Avenue A train station in Brooklyn.

Bumpus claims that on July 16 she asked Smith for assistance in using a Metrocard, and Smith responded with “a steady stream of discriminatory, transgender-phobic epithets at Ms. Bumpus, verbally harassing her and haranguing her with vicious transphobic language in an extremely loud voice, pointedly doing so publicly to humiliate and harass Ms. Bumpus.”

Bumpus made a formal complaint and spoke with a TA superintendent on July 20 about this incident, but when she entered the same station on July 25, she claims, Smith was there, recognized her, pointed at her, and again verbally harassed her with transphobic language. Bumpus then filed a claim with the TA, testified at a hearing, and, in January 2007, filed her lawsuit against the TA and “Jane Doe,” later identified as Smith.

Attorney Armen H. Merjian represents Bumpus on behalf of Housing Works, the AIDS advocacy group.

Bumpus claimed mental and emotional injuries due to conduct she characterized as a violation of the city’s ordinance barring gender identity discrimination in places of public accommodation. The TA, pointing out that it has a non-discrimination policy, argued it could not be held liable for Smith’s actions, but Bumpus responded that the TA was negligent in not training its employees after enactment of the transgender rights law in 2002.

The TA also argued that as a public authority it was not subject to the city’s human rights ordinance, and Smith asserted that holding her personally liable for speech would violate her First Amendment free speech rights. The defendants also claimed that the anti-discrimination provision was unconstitutionally vague, and that Smith could not be liable for discrimination because she never specifically told Bumpus she was unwelcome in the subway system.

Justice Sherman found that the TA did not enjoy any exemption from the non-discrimination provisions in the city ordinance, which he wrote, by their terms, clearly apply both to employers and employees who violate them. The judge rejected the argument that directing transphobic comments at a customer who requested help from a transit worker was not a denial of services.

As to the negligent training argument against the TA, Sherman noted evidence that there had been 16 past complaints against Smith by TA customers, and that “there is evidence that the NYCTA simply failed to respond to complaints about Smith… A trier of fact could properly conclude that Smith had a long history of mistreating subway customers.”

Sherman wrote that there was “no indication” that the TA offered training in the wake of the 2002 law, concluding, “A reasonable trier of fact could reasonably conclude that by failing to instruct Smith about sensitivity to gender identity, NYCTA’s failure to train proximately caused the alleged incident.”

The judge found it irrelevant that none of the past incidents involving Smith concerned transphobic speech, since what was at issue was the employee’s “propensity to cause injury,” which would put the TA on notice about its obligation to protect its customers.

Finally, Sherman rejected the argument that the law was unduly vague or overbroad or wrongly punished constitutionally protected speech. In light of the TA’s “public service functions,” he found, the court must weigh how Smith’s alleged speech affected the ability of members of the public to access a public service.

“The prohibition of bigoted behavior in the public accommodation context contained in [the law] does not violate the constitutional guarantee of free speech,” he wrote, finding that the city has a “compelling interest in combating invidious discrimination,” and that Supreme Court precedents suggest that the city law as applied in this case “would survive the most exacting scrutiny.”

It is surprising that Sherman failed to mention Garcetti v. Ceballos, a 2006 US Supreme Court decision that held that public employees are not protected under the First Amendment when they are speaking as employees rather than as individual citizens on a matter of public interest. Smith was in uniform, on duty at a subway station in her capacity as an employee, and responding to a request by a member of the public for assistance. Her speech in response to that request would seem to be exempt from First Amendment protection according to that Supreme Court ruling.

Bumpus’ case now goes forward against the Transit Authority and Smith, unless the parties settle.