Nine years ago gay and lesbian activists made a decision. To get a non-discrimination bill they desperately wanted past New York's state legislature, they cut out protections for their transgender allies. The law passed, but a bitter rift in the state's LGBT community was born -- one that is still being mended.
Gay and lesbian New Yorkers could eat at the restaurant of their choice or live in the apartment of their dreams without fear of discrimination. Transgender New Yorkers would have no such protections. A near-weekly stream of headlines attests to the struggles they still face: an Occupy Wall Street protestor says the NYPD mistreated him because he is transgender, the state has rejected the possibility of using Medicaid to pay for transgender surgery and in August a Brooklyn man stabbed his transgender girlfriend to death.
The Gender Expression Non-Discrimination Act has yet to make its way into law. Today its fate hangs in the hands of a state Senate controlled by a slim Republican majority and a Democratic governor who has made occasional supportive statements. Advocates say GENDA would serve as no magic solution for the obstacles the transgender community faces. But they are tired of waiting for a law that could do some good, and at least one activist believes the recent passage of same-sex marriage, while a cause for celebration, could even slow GENDA's progress.
"There's a stupid old rule in Albany -- only one gay bill per session," said Pauline Park, the chair of the New York Association for Gender Rights Advocacy. She believes GENDA lost out to the more politically advantageous alternative of marriage equality.
"The more privileged gay white men who live in Manhattan are more likely to open up their checkbooks [for same-sex marriage]," she said with characteristic bluntness.
Park's group is small, and her view seems to be a minority one among the members of the GENDA coalition. The bill's state Senate sponsor and others fighting to get GENDA passed argue that marriage equality's passage is a positive development for transgender rights.
"Quite the contrary," said Ross Levi, executive director of the Empire State Pride Agenda, a large membership organization that also took a leading role in the marriage equality fight. "I hope marriage provides momentum for this issue. New Yorkers more and more are having exposure and thinking about LGB and T issues."
"Certainly there won't be the same money and energy behind it that there was for marriage, unfortunately and unfairly," said Sen. Tom Duane (D), the bill's lead sponsor in the state Senate. But Duane believes GENDA doesn't necessarily need the same sort of highly visible campaign marriage equality did -- a lower-key education effort could work instead.
"The transgender activist community has been overworked for more than a decade to try to get their civil rights, and I'm sad to say that they're going to have to keep it up, but I do believe that we can have a victory," he said.
Nevertheless Duane -- recalling marriage equality's dramatic loss in 2009 -- was unwilling to hazard a guess about the bill's chances this legislative session. If Park is right, what she calls Albany's "primitive" mindset means that GENDA could be put on hold through another election cycle. Republicans control New York's state Senate by a thread, and some of them could be waiting on how their four colleagues who voted for marriage equality fare at the polls before they support any more "gay" bills. If that's the case, by January 2013 it will have been ten long years since the non-discrimination bill passed without protections for transgender people.
A 2010 attempt to pass the bill ended in acrimony. After the Empire State Pride Agenda's then-outgoing director slammed Duane for slow-walking the bill through the Senate, it was brought to a vote in a Senate committee -- where it fell one vote short of passage.
The mystery -- and the bitter irony -- of such defeats is that GENDA seems to be broadly popular among New Yorkers. A 2008 poll conducted for the Empire State Pride Agenda found that 78 percent of registered state voters supported it. Similar bills are on the books in 15 states, according to ESPA, and they raise few of the questions over whether we are "redefining tradition" the way same-sex marriage does.
Some, like Park, blame Duane for inattention to GENDA. But he has racked up a series of victories on marriage equality and other LGBT bills in the face of Republican majorities, and told HuffPost he is "determined" to get GENDA passed. He and other advocates say a lack of understanding among some Republican state senators make the religious right's arguments against GENDA carry outsized weight.
"We tend to turn everybody's ideas of sexual orientation upside down. We're not confused, but everybody else is confused," said Joann Prinzivalli, state director of the New York Transgender Rights Organization.
That confusion most often finds its outlet in what advocates call the bathroom issue. Opponents tell Republican senators on the fence scare stories about predators in restrooms using the cover of law to terrorize women. Such tales are "objectively untrue," Duane said, but the people in the best position to tell a countervailing narrative -- transgender persons themselves -- are sometimes few and far between in the upstate districts where Senate Republicans are concentrated.
"They risk public exposure and loss of jobs, and sometimes violence, loss of homes and terrible, horrible discrimination," Duane said.
Slowly, attitudes towards transgender people are changing and misperceptions are fading. The New Republic calls the battle over transgender rights "America's Next Great Civil Rights Movement."
"Whether that's seeing Chaz Bono on 'Dancing With the Stars,' or their coworkers in the cubicle next door at work," Levi said, transgender people are entering the mainstream consciousness.
As the polling demonstrates, however, public support only goes so far among Albany's powerbrokers. Prinzivalli believes passage will take the active leadership of Gov. Andrew Cuomo (D). Others think a quieter, intra-Senate game might do the trick. But nothing is certain -- as advocates have learned time and time again with GENDA.