In New York, You Could Be Fined $250K for Failing to Use a Transgender Person’s ‘Preferred’ Pronoun

Kelsey Bolar / January 06, 2016

Raising the bar for other cities throughout the country, New York City announced “strong” and “bold” protections for transgender and gender non-conforming individuals.

The new legal guidance, issued Dec. 21 by the New York City Commission on Human Rights, came as part of an expansion of the city’s 2002 Human Rights Law, which protects against discrimination in a range of categories. The updated policy specifically protects transgender and gender non-conforming individuals from discrimination in areas of employment, public accommodation, and housing.

According to the city, gender non-conforming individuals is a term “used to describe someone whose gender expression differs from traditional gender-based stereotypes.”

Under the new policy, landlords, employers, and businesses can face civil penalties up to $125,000 per violation and up to $250,000 “for violations that are the result of willful, wanton, or malicious conduct.”

According to the city, violations include:

• Intentionally failing to use an individual’s preferred name, pronoun, or title. For example, repeatedly calling a transgender woman “him” or “Mr.” when she has made it clear that she prefers female pronouns and a female title.

• Refusing to allow individuals to use single-sex facilities, such as bathrooms or locker rooms, and participate in single-sex programs, consistent with their gender identity. For example, barring a transgender woman from a women’s restroom out of concern that she will make others uncomfortable.

• Enforcing dress codes, uniforms, and grooming standards that impose different requirements based on sex or gender. For example, enforcing a policy that requires men to wear ties or women to wear skirts.

• Failing to providing employee health benefits that cover gender-affirming care or failing to provide reasonable accommodations for individuals undergoing gender transition, including medical appointments and recovery, where such reasonable accommodations are provided to other employees. (Federal and New York laws already require certain types of insurance to cover medically-necessary transition-related care.

“This is essentially a speech crime law,” Jeremy Tedesco, senior counsel for Alliance Defending Freedom, told The Daily Signal. “You can be fined up to $250,000 if you use the pronoun ‘he’ to refer to a man.”

The guidance has the support of prominent LGBT groups, including the New York Civil Liberties Union, the New York City Anti Violence Project, and the National Center for Transgender Equality.

“Laws that protect gender identity nondiscrimination are essential, and it is detailed guidance like this that makes the promise of the law a reality in the everyday lives of transgender people,” said Mara Keisling, executive director of the National Center for Transgender Equality, in a press release.

The legal guidance also has the backing of New York City Mayor Bill de Blasio, who said the protections would ensure “that every transgender and gender non-conforming person in New York receives the dignity and respect they deserve.”

But with threats of thousands of dollars in fines, critics fear that the New York City Commission on Human Rights has gone too far.

“When you start seeing $250,000 in fines you could face as a small restaurant owner, you just comply,” Tedesco said, suggesting that a “chilling effect” would take place.

In a press release, the New York City Commission on Human Rights boasted about the broad scope of the new guidelines, stating that they go “further” than other major cities.

“New York City’s Human Rights Law now goes further in protecting the rights of transgender and gender non-conforming people than many large municipalities with gender identity protections,” they said. “Cities such as Washington, D.C., San Francisco and Philadelphia do not articulate such specific protections under their laws.”

Tedesco argued that the New York City Commission on Human Rights has “extremely overreached on the guidelines they’ve passed” and is hopeful state legislators will address the issue themselves.

“The good news is that they’re guidelines, so hopefully some pushback can get them to pull back,” he added.

But in the meantime, New York City Human Rights Commissioner Carmelyn Malalis promised to “aggressively” enforce the protections in order to ensure the safety of transgender and gender non-conforming individuals.

“Today’s guidance makes it abundantly clear what the city considers to be discrimination under the law and the commission will continue to aggressively enforce protections to make that promise a reality,” Malalis said. “Every New Yorker deserves to live freely and safely, free from discrimination.”

According to the city, an estimated 25,000 transgender and gender non-conforming people live in the Big Apple.