There is updated news on a story I first wrote about in August of 2011. The wheels of justice grind slowly.
Brooklyn Supreme Court Justice Debra Silber has ruled that a transgender woman who is alleging discrimination at a residential drug rehabilitation program may proceed with her lawsuit.
Sabrina (aka Sabire) Wilson fled Phoenix House after being denied the ability to fully live as a woman. Wilson, who is now 32m was arrested in 2008 on a drug offense and enrolled in the drug rehab program as an alternative to prison. She had begun identifying as a girl at 14 and had been diagnosed with gender identity disorder at the age of 16, but had not undergone corrective surgery.
Wilson had chosen Phoenix House because it had represented itself as "gay-and-lesbian-friendly". Wilson originally made excellent progress in the program, being appointed a "resident senior structure coordinator." But she encountered harassment from members of upper management.
When she arrived at Phoenix House, she told the administrators of the program that she was still biologically male but identified as a woman. The Phoenix House staff required her to use male restrooms and participate in group sessions with the males, while refusing to allow her to wear her wigs, makeup or high heels (She might trip!)…which the biological women were allowed to do. After being invited by a senior counselor into a new women's group to discuss gender-related addiction issues, she was ejected from the group and told by the director of the program:
You belong in the male group, and that's the group you are going to attend. You have to be in the men's group, period... You should adjust.
The other residents in the program petitioned the administration to be flexible in regards to Ms. Wilson, the director remained adamant.
[W]e can't suit your needs as a transgender in our program.
Indded she was informed that no Phoenix House program would meet her needs. So Wilson left the program, which resulted in her being sentenced to two and a half years in a men's prison. Most of that time was spent in solitary confinement.
Justice Silber wrote:
[The] legal and political community has made great strides in the last decade toward assuring legal equality for lesbian, gay and bisexual persons . . . with regard to transgendered and other gender nonconforming people, there has been far less progress in addressing their legal rights.
The term transgender is “applied to people who dress or act in a manner that is different or opposite from what is considered "normal' for their birth-gender,” Silber noted. For decades, transgendered individuals were deemed to have made a choice of gender. As their identity is born of choice rather than nature, the argument followed, that choice did not allow them the strict protections of anti-discrimination laws.
Higher levels of protection are generally granted to those who are discriminated against for aspects out of their control, such as race and birth gender but, as Silber deduced, gender discrimination has been defined by past case law as discrimination against an individual for failing to “conform to stereotypical gender norms.”
Therefore, as transgender individuals “transgress society's gender norms in some manner,” Silber said, they should be granted a higher level of protection against discrimination and afforded the court’s protection for “aid or redress.”
Wilson initially filed her suit, alleging discrimination on the basis of sexual orientation, in federal court. But then the US Supreme Court ruled that prisoners serving time in privately owned facilities were barred from bringing suit under anti-discrimination laws. So WIlson refiled in state court under New York's Human Rights Law.
Phoenix House argued that they could not have discriminated against wilson because Wilson did not suffer from a disability…but if she did, it was not made known to Phoenix House. Silber dismissed that argument:
[G]ender Identity Disorder is a disability under both the New York State Human Rights Law and the New York City Human Rights Law.
I'm not so sure about GID being a disability under New York State Human Rights Law. New York is one of the states that has protections on the basis of sexual orientation but not gender identity. GENDA has passed the state Assembly 6 times, but has never passed the Senate.
Wilson is suing for "an amount no less than $2,000,000.00 to compensate her for ‘…economic loss, loss of rights, as well as for the humiliation, embarrassment and emotional distress suffered’ due to defendants' [alleged] discriminatory conduct."
For any legal beagles out there, there is a NY Law Journal story by John Caher. Those without a subscription can read the content of that story here.
Judge Silber's ruling in Wilson v Phoenix House is here.