The New Mexico state senate added not only “sexual orientation” but also “gender identity” to its nondiscrimination clause of its Human Rights Act. California and other states soon followed suit in adding protection for those who are transgender, transsexual, or who are otherwise gender variant.
On February 24, 2003, the New Mexico House of Representatives voted 39-27 to broaden the state’s Human Rights Act by approving House Bill 314 to prohibit bias against people based on sexual orientation and gender identity. The amendment, introduced by Representative Gail C. Beam, prohibits discrimination in employment, housing, credit, public accommodations, and union membership for all governments and businesses in New Mexico.
On March 21, Senator Cisco McSorley then introduced the bill before the New Mexico Senate. After some debate, it was passed 22-18. Governor Bill Richardson signed it a few days later, converting the bill into law. It was a strong victory for GLBT citizens of New Mexico. The bill was first introduced in 1991 and rejected 35-31 by the house in 2001. Much of the credit for the change in votes goes to Governor Richardson, a staunch supporter of the bill. New Mexico became only the third state to cover gender identity explicitly in its antidiscrimination law.
It was a risky venture. While many supported the antidiscrimination clause to include sexual orientation, there was greater debate surrounding the addition of gender identity. Proponents on both sides often wondered if inclusion of gender identity would ultimately defeat the measure. However, activists, including an arm of the National Gay and Lesbian Task Force (NGLTF), the Transgender Civil Rights Project,
Many initially saw the decision of New Mexico’s senate as one clearly along party lines. Republicans were vocal about excising gender identity from the amendment, often debating that gender discrimination was necessary as a practical matter: For example, segregating company restrooms and changing rooms. However, due in large part to grassroots efforts, these arguments were refuted, and a strongly Democratic senate pushed the bill through.
The amendment established a state hate crime law, providing extra prison time for offenders whose crimes are found to have been motivated by hate caused by actual or perceived race, religion, color, national origin, ancestry, gender, gender identity, or sexual orientation of the victim. More important, the law forbids housing and job discrimination based on those same protected classes.
In 2004, efforts to repeal the bill were unsuccessful. New Mexico’s constitution allows citizens to attempt to overturn a law passed by the legislature by putting a repeal question on the ballot in the next general election. Opponents, including Representative Earlene Roberts, submitted a referendum to get the appeal put on the November 2 ballot, but New Mexico’s referendum provision does not apply to laws providing for the “preservation of the public peace, health or safety.” Attorney General Patricia Madrid said in a legal opinion that the Human Rights Act was protected against referenda because the antidiscrimination protections “represent an exercise of the state’s inherent police powers.”
Transgender and gender-variant people have often felt alienated from their own communities. The gay and lesbian community, too, often disassociates itself from those who are transgender and from the fight for transgender rights. New Mexico’s inclusion of gender identity with sexual orientation in its Human Rights Act was a significant step forward not only for transgender rights but also for the unification of the GLBT community.
Thanks in large part to New Mexico’s efforts, California also explicitly banned discrimination based on gender identity. Minnesota enacted such a ban in 1993, as had Rhode Island in 2001. Kentucky and Pennsylvania prohibit bias against transgender state workers. Eight other states (Connecticut, Florida, Hawaii, Illinois, Massachusetts, New Jersey, New York, and Vermont) interpret their antibias laws as already giving protection to those who are transgender. Pressure in the remaining states is mounting to include gender identity in all antidiscrimination policies.
An important case for transgender rights occurred on June 1, 2004, in Ohio. A transgender employment discrimination decision was made in favor of Jimmie Smith, a male firefighter transitioning to female who encountered hostility on the job. The ruling also applies to employers in Kentucky, Michigan, Ohio, and Tennessee who have fifteen workers or more. Similar cases are being heard in courts around the country.
Many consider New Mexico, generally thought to be a somewhat conservative state, a new leader in transgender-rights legislation. Countless cities and businesses, including a large percentage of Fortune 500 companies, have since included gender identity in their own antidiscrimination policies. Businesses that operate in multiple cities, those of which have gender identity antidiscrimination laws, have largely adopted the policy for all locations in which their company does business.
States have been somewhat slower than the private sector to adopt amended policies. Some claim that gender identity is already covered in their policies under the category of “gender” and therefore further legislation is not needed. Still others maintain a policy for state workers but do not extend that to private businesses. Overall, however, transgender and human rights activists have challenged policies in almost all states and will continue to do so.
What is clear from New Mexico’s amendment to include gender identity in its antidiscrimination and hate crimes policy is that transgender rights have become the next step in the evolution of equitable rights for all people and that individual companies and organizations have, by and large, been more open to adopt inclusive antidiscrimination policies than have state and federal government agencies.
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Best Companies to Work For. http://www.tgender .net/taw/goodcomp.html. -
Currah, Paisley, and Shannon Minter. “Unprincipled Exclusions: The Struggle to Achieve Judicial and Legislative Equality for Transgender People.” William & Mary Journal of Women and the Law 7 (Fall, 2000): 37-66. -
Human Rights Campaign. http://www.hrc.org. -
Leonard, Arthur S. “New Mexico Legislative/Executive Trifecta: Simultaneous Measures on Discrimination, Hate Crimes, and Partner Benefits—State High Court Recognizes Consortium Claim.” Lesbian and Gay Law Notes (May, 2003): 65. -
New Mexico Legislature. House Bill 314. http://legis.state.nm.us/Sessions/03%20Regular/bills/house/HB0314.html. -
Sharpe, Andrew N. Transgender Jurisprudence: Dysphoric Bodies of Law. London: Cavendish, 2002.
1992: Transgender Nation Holds Its First Protest
June 17, 1995: International Bill of Gender Rights Is First Circulated
1998: Transgender Scholarship Proliferates
October 27, 1999: Littleton v. Prange Withholds Survivor Rights from Transsexual Spouses
2002: Sylvia Rivera Law Project Is Founded
April 30, 2002: Transgender Rights Added to New York City Law
February 21, 2003: Australian Court Validates Transsexual Marriage
March, 2003-December, 2004: Transsexuals Protest Academic Exploitation
November 20, 2003: Transgender Day of Remembrance and Remembering Our Dead Project
May 17, 2004: Transsexual Athletes Allowed to Compete in Olympic Games