Bureaucratic Obtuseness Leads to Discrimination Claim by Transgender Woman against New York City

New York State Supreme Court Justice Margaret A. Chan (Supreme Court, New York County) ruled on December 2 that a transgender Jane Doe plaintiff had stated a cause of action against New York City based on the treatment she received when she requested that the Human Resources Administration’s HIV/AIDS Services Administration (HASA) update it records and issue her a new benefits ID card that correctly identifies her name and gender.  My first reaction on reading this case was to question why the New York City Law Department did not negotiate a settlement and is spending time litigating over what appears to be a case of bureaucratic obtuseness at HRA.

Justice Chan’s decision relates that the plaintiff, identified as male at birth in Puerto Rico, came early to recognize her female gender identity and began taking hormones and testosterone suppressants at age 12 to feminize her body. She now lives in New York.  She has undergone medical and surgical procedures to transition fully, and received a New York court name-change order in March 2011.  She is a client of HASA, and applied in August 2011 to change her records and benefits card to reflect her female name and gender.  She points out in her complaint that having the benefits card with the wrong name and gender causes her practical problems and sometimes leads to situations where she may be accused of fraud or otherwise subjected to embarrassment or harassment.

According to her complaint, Jane Doe and “her patient navigator” presented her caseworker at HASA with the court-issued name change order and a letter from her treating physician attesting to her completed gender transition, but her case manager said he “could only submit the request for a name change to the HRA Case Manager, but could not guarantee that the request would be granted.”  As to a change of gender identification, the case worker said that would not be possible without a new birth certificate, which was required by HASA’s administrative policy.  Even when Doe explained that Puerto Rico does not issue new birth certificates in gender transition cases, her case worker, his supervisor, and the Center Manager all insisted that HASA could not change its records to reflect Doe’s current gender identity without such a document.  When Doe requested a written explanation for the denial of her request, she was required to sign a release using her birth name, even though she no longer uses that name to transact business and finds it demeaning.  She also notes that HASA employees insisted on calling her by the male name on her ID card, despite the name-change order.  After continued advocacy, HASA and HRA eventually caved and changed the records, but Doe determined to challenge HASA’s policy of requiring birth certificates to make gender identification changes in its records, arguing that the name-change order and doctor’s certification should be sufficient.  She is represented by Manhattan Legal Services attorney Daniel Pepitone.

Doe brought her lawsuit under both the New York State Human Rights Law and the New York City Human Rights ordinance, alleging gender and disability discrimination.  The state law expressly forbids discrimination in providing public services because of sex or disability, while the City law goes further and expressly forbids discrimination based on gender identity.  Doe claims that she was denied access to benefits, including immediate processing of her request to update her HASA records and issue her a new benefits card reflecting her current gender and legal name.  She also claimed that HASA employees violated her right to privacy by the way they treated her, “because HASA employees were speaking loudly so that others in the office were privy to plaintiff’s request and knowledge of her change of gender.”

The city’s response: Doe was never actually denied benefits or services, and that if she felt harassed or demeaned by HASA employees, this did not “rise to the level of discrimination.”

Justice Chan noted that the City’s anti-discrimination law specifically provides that it “shall be construed liberally for the accomplishment of the uniquely broad and remedial purposes thereof, regardless of whether federal or New York State civil and human rights laws, including those with provisions comparably-worded, have been so construed.”

Turning first to Doe’s challenge to the policy of requiring a new birth certificate as a prerequisite for making a gender change in HASA records, Justice Chan noted that this policy is, on its face, neutral and non-discriminatory.  However, she noted, under the City’s law, “a claim of discrimination based on sexual orientation can be stated where a facially neutral policy or practice has a disparate impact on a protected group.”  Justice Chan wrote, “For the transgender community, while there are procedures on obtaining a change to one’s birth certificate after convertive surgery – at least in New York City – it does not hold true everywhere.”  Justice Chan cited a 1983 California opinion that supports Doe’s claim that Puerto Rico does not provide such changes.  “Under the present HASA policy, a transgender person, such as plaintiff, who cannot obtain a change to his/her birth certificate will not be able to obtain a benefits card to indicate a change in his/her gender despite legal name change and documentation from a doctor stating that the medical convertive surgery was complete.  While plaintiff is still eligible for HASA benefits, the unchanged benefits card denies or hampers access to those benefits.  As plaintiff had experienced, she was subjected to accusations of fraud, and denial of tangible benefits because she did not present as a man, contrary to the benefits card indication.  Therefore, while plaintiff is eligible for HASA benefits, she risks loss of such benefits due to her hampered access to them.  Thus, while HASA’s policy appears to be equal across the board, its practical impact for the transgender community is not.”

Justice Chan also found, contrary to the City’s arguments, that the way in which HASA employees treated Doe was “not a light matter.”  She found that their actions were “laden with discriminatory intent,” since they knew based on her documentation that she had transitioned, and “yet did not treat her accordingly or appropriately.”  The judge found that these actions by HASA employees “are against the tenets of HASA which is to assist clients with housing, medical, and financial needs.”  She concluded, “It cannot be said that plaintiff felt demeaned for any reason other than abject discriminatory reasons.”  Consequently, the City’s motion to dismiss the case was denied.

Because Justice Chan concludes that Doe’s allegations are sufficient to state a discrimination claim under the state and City laws, the City’s burden if it wants to proceed with this litigation would be to show that it is somehow necessary to insist on the birth certificate to make the requested change in HASA records, even when a client has presented both medical evidence and a court-ordered name change document.  If Doe’s medical evidence was sufficient for the court to order a name change, one wonders why it would not be sufficient for HASA to revise its records and issue a new benefits card that is congruent with the name change.  While it would be interesting to see whether the City could actually sustain the burden to show that its discriminatory policy has some objective justification, perhaps this opinion will wake up the Law Department to the logical conclusion that HASA should be advised to change its policy and a settlement should be negotiated with Ms. Doe.

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