NY State employees gain gender identity protection

by on December 18, 2009  •  In Employment law, States, Transgender

Governor David Paterson of New York signed Executive Order 33 on Wednesday declaring that state government employees shall not be subjected to discrimination based on gender identity. The state already prohibits sexual orientation discrimination for all employees, public and private. It's an important step; Governor Paterson deserves credit for taking it. 

The problem with executive orders is that they create no remedies for the employee who may nonetheless suffer discrimination. In some states, an employee can file a personnel complaint based on an executive order, but in many states, an executive order is largely an aspirational statement.  A future governor can also rescind an executive order, which has happened quite a few times with protections for sexual orientation. I doubt that any future New York governor will rescind this one, however.

EO 33 ought to help reassure some of the jittery Dems in Congress, especially those from New York and neighbor states, who are worrying about voting for a trans-inclusive ENDA.

Text of the operative portions (minus the "whereas" clauses) of the executive order after the jump –>

  1. For purposes of this order, “gender identity” shall mean having or being perceived as having a gender identity, self-image, appearance, behavior or expression whether or not that gender identity, self-image, appearance, behavior or expression is different from that traditionally associated with the sex assigned to that person at birth. For purposes of this Order, “State agency” shall mean any department, agency, division, commission, bureau or other entity of the State over which the Governor has executive power.
  2. No State agency shall discriminate on the basis of gender identity against any individual in any matter pertaining to employment by the State including, but not limited to, hiring, termination, retention, job appointment, promotion, tenure, recruitment and compensation.
  3. All managers, supervisors and employees in all State agencies shall make diligent, good faith efforts to ensure that all employees are afforded equal opportunity, without regard to their gender identity.
  4. The Office of Employee Relations, in consultation with the Executive Director of the Division of Human Rights, is hereby directed to promulgate clear and consistent guidelines prohibiting discrimination based on gender identity to maintain an environment where only job-related criteria are used to assess employees or prospective employees of the State. The Office of Employee Relations shall also implement a procedure to ensure the swift and thorough investigation of complaints of discrimination based on gender identity. Particular effort should be made to conduct investigations with due regard for confidentiality. The terms of this order shall take effect immediately, and shall be in effect irrespective of the issuance of any guidelines or procedures.


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