A New York State trial judge in Brooklyn rejected the New York City Transit Authority's argument that the city's 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 Transit Authority and the accused transit worker, while granting a motion by the New York City Law Department to intervene in the case in order to defend the constitutionality of the city law.
The lawsuit arose from two incidents during July 2006 when Tracy Bumpus claims to have been the victim of transphobic verbal harassment by Lorna Smith, a transit worker then on duty at the Nostrand Avenue A Train subway 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 Transit Authority 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 against the TA, testified at a hearing, and finally in January 2007 filed her lawsuit against the Transit Authority and "Jane Doe," later identified as Smith. Attorney Armen H. Merjian represents Ms. Bumpus on behalf of Housing Works.
Bumpus claimed to have suffered mental and emotional injuries due to conduct that she characterized as a violation of the city's ordinance forbidding gender identity discrimination in places of public accommodation. The Transit Authority, pointing out that it has a non-discrimination policy, argued that it could not be held liable for Smith's actions, but Bumpus argued in response that the TA was negligent in not training its employees in response to the enactment of the gender identity provision several years ago. The TA also argued that as a public authority it was not subject to the city's human rights ordinance, and Smith argued that holding her personally liable for speech would violate her First Amendment free speech rights. The defendants also argued that the anti-discrimination provision was unconstitutionally vague, and that Smith could not be liable for discrimination because she never specifically told Bumpus that she was unwelcome in the subway system.
Cutting through the various arguments back and forth, Justice Sherman found that the TA did not enjoy any exemption from having to comply with the non-discrimination provisions in the city ordinance, and that the ordinance, by its terms, clearly applies both to employers and employees who might violate its provisions. The judge rejected the argument that directing transphobic comments at a customer who had requested help from a transit worker was not a denial of services. "Given the broad goals of the New York City Human Rights Law," he wrote, "and the language in section 8-107(4)(a) prohibiting conduct 'to the effect that' a transgender person (among others) is not welcome at the subway, it is not dispositive that Smith did not make an explicit statement that plaintiff was not welcome in the subway system because of her gender identity."
As to the negligent training argument against the TA, Justice 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," so that "a trier of fact could properly conclude that Smith had a long history of mistreating subway customers." Under the circumstances, the TA could be found negligent for failing to take action against Smith. "There is no indication that the NYCTA reacted to the amendment [that added gender identity to the city law]. 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 court also 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" that would put the TA on notice about its obligation to protect its customers.
Finally, Justice Sherman rejected the argument that the law was unduly vague or overbroad or wrongly punished constitutionally protected speech. He found that the law's application to the facts of this case was clear, and that the language of the statute was not such that it was likely to be applied to constitutionally protected conduct or speech. In light of the "public service functions" of the TA, the court would have to consider 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. He found 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." He noted that the transit system, as a limited public forum, can impose time, place and manner restrictions on speech.
This reader found surprising the court's failure to mention Garcetti v. Ceballos, a U.S. 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. In this situation, Smith was in uniform, on duty at a subway station in her capacity as an employee, 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 under Garcetti.
The court's denial of summary judgment means that the case will go forward against the Transit Authority and Ms. Smith unless the parties settle.