Ulster lawmakers at odds over transgender protections

(Photo by Julie O’Connor)

A county lawmaker is accusing Legislature Chairman Ken Ronk of “acting in bad faith” after he circulated a resolution addressing transgender discrimination that is substantially weaker than legislation that has been making its way through the county legislature for a year.

“This is more than just a bait and switch. It is fundamentally unfair,” said lawmaker Jennifer Schwartz Berky (D-Kingston). “Not just to me, but to the community this law was trying to protect and all of the people who have been working on this for over a year.”

Last spring, Berky was the prime sponsor of a proposed local law that would ban discrimination against people on the basis of gender identity in “any place of public accommodation, resort or amusement.” The legislation would have placed responsibility for enforcing the law with the county’s Human Rights Commission and given the volunteer board the authority to levy fines of up to $250 per violation. Berky said she was spurred to draft the law by two incidents in 2016 involving transgender people being denied access to public accommodations based on their gender identity. In one, a transgender woman claimed that she was denied the use of the women’s shower and locker room at a local gym. A second case involved a transgender man who claimed he was barred from getting his hair cut at a men’s barber shop in the Town of Ulster.

Last summer, Berky and other backers held a three-hour workshop to go over how the anti-discrimination law would work and why it was needed. Currently, gender identity is not included as a protected category under state anti-discrimination law. But a 2015 executive order signed by Gov. Andrew Cuomo allows allegations of anti-trans discrimination to be heard by the state’s Human Rights Commission. The administrative regulations contend that transgender individuals are protected from discrimination under existing laws barring discrimination on the basis of gender and disability. In addition, a number of cities, towns and counties in New York have enacted local legislation similar to that proposed by Berky, banning discrimination against transgender people.

“Why not say that here in Ulster County we’re out front on this,” said Berky. “Do we want to send a message to people that we are not a welcoming and inclusive community?”

When opponents of Berky’s bill pointed out that the county’s human rights commission had no statutory authority to levy fines, Berky withdrew the legislation and resubmitted it in January with the understanding, she said, that it would moved through the legislative process in tandem with a reworked human rights law to give the commission more power. Berky said that the legislature was due to vote to set a public hearing for the bill when she learned, one hour before the meeting began, that Ronk had circulated a competing bill among fellow Republicans.

Ronk’s bill references Cuomo’s executive order on transgender discrimination. It goes on to reaffirm the county’s Human Rights Commission’s job to, “Amicably resolve such complaints, reduce tensions, build consensus and foster harmony between the various diverse communities within Ulster County.” The law goes on to describe the commission’s power to “report but not initiate” complaints to the state’s Division of Human Rights. Ronk’s bill also replaces language in Berky’s version saying that it is in the interest of the county to protect its citizens from discrimination, prejudice and intolerance. Ronk’s version instead reads that the county should “encourage its citizens to reason together to reduce tensions” stemming from “alleged acts of discrimination, prejudice and intolerance” through “conference, conciliation and persuasion” facilitated by the county Human Rights Commission. Ronk’s version redacts all language specifically barring anti-transgender discrimination in public accommodations and eliminates provisions allowing the Human Rights Commission to levy fines and other sanctions on violators.

Berky said Ronk’s bill amounted to a surprise torpedoing of efforts underway since last spring to create a Human Rights Commission with enforcement powers and protect transgender people from discrimination. Berky pulled her bill from consideration, returning it to committee. She said she acted out of concern that Ronk had the votes to abruptly replace her bill with his own.

“This was not acting in good faith, this was out of left field,” said Berky. “Basically, [Ronk] tried to present this as somehow related to what we have been discussing for the past year, but it isn’t.”

Ronk, however, said his bill was simply an effort to bring Berky’s proposal in line with existing law. Ronk said that the county Human Rights Commission has no power to levy fines. Giving it that authority, he said, would require a home rule resolution from Albany lawmakers.

“It’s a laudable goal, but our Human Rights Commission just does not have the authority to do that,” said Ronk. “The Republican caucus, myself in particular, would prefer to do things legally, rather than illegally.”

Ronk added that he had reservations about Berky’s proposal, in conjunction with the anti-discrimination law, to grant enforcement powers to an all-volunteer commission. The commission, Ronk said, did not have the requisite expertise to handle investigations and enforcement rather than simply reporting and mediating alleged bias incidents. Ronk said that he wanted to the commission to remain a vehicle for mediation and resolution of complaints while allowing state officials — who can levy fines of up to $100,000 for violations of anti-discrimination statutes — to handle enforcement.

“There’s been a push to label [opponents of Berky’s bill] as anti-transgender because we don’t want to do it their way,” said Ronk. “But there’s nobody in the legislature who wants to see transgender people discriminated against.”