By Dustin Brown
The question of who should use the third floor women’s bathroom at a Jackson Heights office building has ignited a legal battle that the American Civil Liberties Union hopes will lead to clearer protections for transgendered individuals from discrimination.
The ACLU has filed a lawsuit on behalf of a Latino AIDS organization which lost its lease because transgendered clients used bathrooms appropriate for the gender they identify with rather than their anatomical sex.
Transgendered people live much of their lives in the gender opposite their birth sex, dressing and assuming characteristics of the other gender.
The case may provide a definitive response to the question of whether or not transgendered individuals are actually covered by New York City’s human rights law, which does not cite the transgendered among categories of people protected from discrimination.
The Hispanic AIDS Forum had occupied a suite in the Bruson Building at 74-09 37th Ave. for the past 10 years, providing the only services expressly catering to HIV-positive Latinos in western Queens. The agency chose Jackson Heights not only because of its high concentration of Latinos, who make up 40 percent of the area’s population, but also because the neighborhood is home to one of the city’s largest gay communities.
A year and a half ago the agency established a program tailored explicitly to the transgendered, which attracted more transgendered individuals to the building and invariably to its restrooms. When other tenants complained that men dressed as women were using the women’s restroom, the landlord indicated the situation would have to be resolved before a new lease could be negotiated.
Instead of meeting with representatives of the agency, however, the landlord decided not to renew the agency’s lease, according to the ACLU suit.
The ACLU filed suit on behalf of the forum on June 26 in State Supreme Court in Manhattan, seeking unspecified monetary damages from the estate of Joseph Bruno, which owns the building.
Representatives of the estate did not return phone calls seeking comment.
According to Pauline Park, a founder of the New York Association for Gender Rights Advocacy, the word “transgendered” describes “all those who live a significant portion of their lives in a gender opposite their birth sex.”
Where sex is based on anatomy — whether one is physically male or female — gender is a more fluid category describing how a person identifies himself.
As Park described it, the clients of the Hispanic AIDS Forum who chose to use the women’s room were actually using the gender-appropriate restroom: although they are anatomically male, they identify and present themselves as women.
“When transgendered women are forced to use the men’s room, in cases such as this, they face the possibility of harassment, physical assault and even sexual assault,” Park said. “If you see someone who is dressed fully as a woman coming into the men’s room, that’s certainly going to cause some consternation.”
Matt Coles, the director of the ACLU AIDS Project, said the issue was not prompted by the tenants’ sensitivity to bathroom usage by transgendered individuals but by the landlord’s refusal to discuss those concerns.
“The problem of how to use the restrooms to accommodate everyone’s interests is something we’re capable of working out,” he said. “You don’t work it out just by throwing someone out.”
The eviction of the Hispanic AIDS Forum forced the agency to settle for a location in Woodside that while more expensive, provides less space than its original office.
Legislation to clarify the city’s human rights code was proposed over a year ago by City Councilwoman Margarita Lopez (D-Manhattan), but Speaker Peter Vallone (D-Astoria) claims transgendered are already protected under other categories and therefore opposes the bill.
The ACLU is arguing in its case that the landlord evicted the Hispanic AIDS Forum on the basis of the gender and disability of its transgendered clients — both of which are categories Park considers inadequate for the transgendered.
The disability argument hinges on transgendered people being considered mentally ill under the manual of the American Psychiatric Association, a prospect Park deemed “insulting and offensive.”
“Most transgendered people are not mentally ill,” she said. “It’s a false diagnosis.”
The gender argument, meanwhile, is based on the precedent of two earlier cases which dealt with transsexuals — individuals who have undergone or intend to undergo sex-change operations — and therefore does not include the majority of transgendered people.
As Coles sees it, the case “points out that even if gender-identity discrimination is covered by the gender-disability discrimination laws, it really doesn’t serve anybody not to have it mentioned explicitly in civil rights law.”
Reach reporter Dustin Brown by e-mail at Timesledger@aol.com or call 229-0300, Ext. 154.