Prohibits discrimination based on gender identity or expression; defines "gender identity or expression" as 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; further includes offenses regarding gender identity or expression within the list of offenses subject to treatment as hate crimes.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A5039
SPONSOR: Gottfried (MS)
 
TITLE OF BILL: An act to amend the executive law, the civil rights
law and the education law, in relation to prohibiting discrimination
based on gender identity or expression; and to amend the penal law and
the criminal procedure law, in relation to including offenses regarding
gender identity or expression within the list of offenses subject to
treatment as hate crimes
 
PURPOSE OR GENERAL IDEA OF BILL: To prohibit discrimination based on
gender identity or expression, and include offenses regarding gender
identity or expression under the hate crimes statute.
 
SUMMARY OF SPECIFIC PROVISIONS: Section 1 declares the legislative
intent.
Section 3 adds new sub. 35 to sec. 292 of the Executive Law, defining
"gender identity or expression."
Other sections add "gender identity or expression" to list of factors
that prohibit discrimination, as follows:
Existing law Provisions of section or
type of discrimination
already prohibited
Sec. 2 Exec. §291(1)&(2) Equality of opportunity
defined as a civil right
Sec. 4 Exec. §295(8)&(9) Division of Human
Rights powers and duties
Sec. 5 Exec. §296(1) Employers, licensing
agencies, employment
agencies, and labor
organizations
Sec. 6 Exec. §296(1-a) Apprenticeship
training programs
Sec. 7 Exec. §296(2) Places of public
accommodation, resort
or amusement
Sec. 8 Exec. §296(2-a) Publicly-assisted
housing
Sec. 9 Exec. §296(3-b) Realtors representing
that a change has
occurred or may
occur in the
composition of
a neighborhood
Sec.10 Exec. §296(4) Nonsectarian education
corporations or associations
Sec.11 Exec. §296(5) Private housing accommodations
and commercial space,
keeping the exemption for
small, owner-occupied housing
Sec.12 Exec. §296(9) Volunteer fire department
membership.
Sec.13 Exec. §296(13) Commercial boycotts
and blacklists
Sec.14 Exec. §296-a(1),(2) &(3) Credit
Sec.15 Exec. §296-b(2) Domestic worker harassment
Sec.16 Civil Rights §40-c Civil rights
Sec.17 Educ. §313(1) Education institutions,
without affecting the
rights of religious
education institutions
Sec.18 Educ. §313(3) Unfair educational practices
Sections 19 through 24 add "gender identity or expression" to the list
of factors that can make a crime a "hate crime."
Section 25 provides for an effective date.
 
JUSTIFICATION: The transgender community is not protected from
discrimination under law. Trans-gender people whose gender identity,
appearance, behavior or expression differs from their genetic sex at
birth face discrimination in housing, employment, public accommodations
and many other areas of life, and they are particularly vulnerable to
hate crimes. Many people -who supported SONDA (the Sexual Orientation
Non-Discrimination Act) believed that it covered transgender discrimi-
nation. However, gender identity or expression is not the same as sexual
orientation.
 
PRIOR LEGISLATIVE HISTORY: 2003: A.8319-A reported to Rules; 2004:
A8319-A referred to Governmental Operations; 2005: A.7438 reported to
Codes; 2006: A.7438 referred to Governmental Operations; 2007: A.6584
reported to Codes; S.3753 referred to Investigations and Gov't. Oper-
ations. 2008: A.6584-A passed Assembly; S.3753 referred to Investi-
gations and Gov't. Operations 2009-10: A.5710 - passed Assembly; S.2406
referred to Investigations and Gov't. Operations
 
FISCAL IMPLICATIONS: Minimal fiscal impact.
 
EFFECTIVE DATE: Thirty days after it shall have become law, except
sections 19 through 24 will be effective on the first of November next
succeeding the date on which it shall have become law,
STATE OF NEW YORK
________________________________________________________________________
5039
2011-2012 Regular Sessions
IN ASSEMBLY
February 10, 2011
___________
Introduced by M. of A. GOTTFRIED, GLICK, O'DONNELL, BRENNAN, CANESTRARI,
COOK, HOYT, ORTIZ, HEVESI, TITONE, JEFFRIES, KELLNER, SCHIMEL,
KAVANAGH, CAHILL, ENGLEBRIGHT, DINOWITZ, PAULIN -- Multi-Sponsored by
-- M. of A. ABINANTI, AUBRY, BENEDETTO, BING, BOYLAND, CYMBROWITZ,
FARRELL, GUNTHER, HOOPER, JACOBS, JAFFEE, LANCMAN, LAVINE, LIFTON,
V. LOPEZ, LUPARDO, MAGNARELLI, MAISEL, MARKEY, McENENY, J. MILLER,
MILLMAN, PEOPLES-STOKES, PERRY, PHEFFER, PRETLOW, RAMOS, N. RIVERA,
ROBINSON, ROSENTHAL, SAYWARD, SCARBOROUGH, SIMOTAS, SWEENEY, THIELE,
TOWNS, WEISENBERG, WRIGHT -- read once and referred to the Committee
on Governmental Operations
AN ACT to amend the executive law, the civil rights law and the educa-
tion law, in relation to prohibiting discrimination based on gender
identity or expression; and to amend the penal law and the criminal
procedure law, in relation to including offenses regarding gender
identity or expression within the list of offenses subject to treat-
ment as hate crimes
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Legislative findings and intent. The legislature reaffirms
2 that the state has the responsibility to act to assure that every indi-
3 vidual within this state is afforded an equal opportunity to enjoy a
4 full and productive life, and that the failure to provide such equal
5 opportunity, whether because of discrimination, prejudice, intolerance
6 or inadequate education, training, housing or health care not only
7 threatens the rights and proper privileges of its inhabitants, but
8 menaces the institutions and foundation of a free democratic state and
9 threatens the peace, order, health, safety and general welfare of the
10 state and its inhabitants.
11 The legislature further finds that many residents of this state have
12 encountered prejudice on account of their gender identity or expression,
13 and that this prejudice has severely limited or actually prevented
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD01139-01-1
A. 5039 2
1 access to employment, housing and other basic necessities of life, lead-
2 ing to deprivation and suffering. The legislature further recognizes
3 that this prejudice has fostered a general climate of hostility and
4 distrust, leading in some instances to physical violence against those
5 perceived to live in a gender identity or expression which is different
6 from that traditionally associated with the sex assigned to that person
7 at birth.
8 In so doing, the legislature makes clear its action is not intended to
9 promote any particular attitude, course of conduct or way of life. Rath-
10 er its purpose is to ensure that individuals who live in our free socie-
11 ty have the capacity to make their own choices, follow their own beliefs
12 and conduct their own lives as they see fit, consistent with existing
13 law.
14 The legislature further finds that, as court decisions have properly
15 held, New York's sex discrimination laws prohibit discrimination based
16 on gender stereotypes or because an individual has transitioned or
17 intends to transition from one gender to another. This legislation is
18 intended to codify this principle and to ensure that the public under-
19 stands that discrimination on the basis of gender identity and
20 expression is prohibited.
21 § 2. Subdivisions 1 and 2 of section 291 of the executive law, as
22 amended by chapter 196 of the laws of 2010, are amended to read as
23 follows:
24 1. The opportunity to obtain employment without discrimination because
25 of age, race, creed, color, national origin, sexual orientation, gender
26 identity or expression, military status, sex, marital status, or disa-
27 bility, is hereby recognized as and declared to be a civil right.
28 2. The opportunity to obtain education, the use of places of public
29 accommodation and the ownership, use and occupancy of housing accommo-
30 dations and commercial space without discrimination because of age,
31 race, creed, color, national origin, sexual orientation, gender identity
32 or expression, military status, sex, marital status, or disability, as
33 specified in section two hundred ninety-six of this article, is hereby
34 recognized as and declared to be a civil right.
35 § 3. Section 292 of the executive law is amended by adding a new
36 subdivision 35 to read as follows:
37 35. The term "gender identity or expression" means having or being
38 perceived as having a gender identity, self-image, appearance, behavior
39 or expression whether or not that gender identity, self-image, appear-
40 ance, behavior or expression is different from that traditionally asso-
41 ciated with the sex assigned to that person at birth.
42 § 4. Subdivisions 8 and 9 of section 295 of the executive law, as
43 amended by chapter 106 of the laws of 2003, are amended to read as
44 follows:
45 8. To create such advisory councils, local, regional or state-wide, as
46 in its judgment will aid in effectuating the purposes of this article
47 and of section eleven of article one of the constitution of this state,
48 and the division may empower them to study the problems of discrimi-
49 nation in all or specific fields of human relationships or in specific
50 instances of discrimination because of age, race, creed, color, national
51 origin, sexual orientation, gender identity or expression, military
52 status, sex, disability or marital status and make recommendations to
53 the division for the development of policies and procedures in general
54 and in specific instances. The advisory councils also shall disseminate
55 information about the division's activities to organizations and indi-
56 viduals in their localities. Such advisory councils shall be composed of
A. 5039 3
1 representative citizens, serving without pay, but with reimbursement for
2 actual and necessary traveling expenses; and the division may make
3 provision for technical and clerical assistance to such councils and for
4 the expenses of such assistance.
5 9. To develop human rights plans and policies for the state and assist
6 in their execution and to make investigations and studies appropriate to
7 effectuate this article and to issue such publications and such results
8 of investigations and research as in its judgement will tend to inform
9 persons of the rights assured and remedies provided under this article,
10 to promote good-will and minimize or eliminate discrimination because of
11 age, race, creed, color, national origin, sexual orientation, gender
12 identity or expression, military status, sex, disability or marital
13 status.
14 § 5. Paragraphs (a), (b), (c) and (d) of subdivision 1 of section 296
15 of the executive law, paragraph (a) as amended by chapter 80 of the laws
16 of 2009 and paragraphs (b), (c), and (d) as amended by chapter 75 of the
17 laws of 2005, are amended to read as follows:
18 (a) For an employer or licensing agency, because of an individual's
19 age, race, creed, color, national origin, sexual orientation, gender
20 identity or expression, military status, sex, disability, predisposing
21 genetic characteristics, marital status, or domestic violence victim
22 status, to refuse to hire or employ or to bar or to discharge from
23 employment such individual or to discriminate against such individual in
24 compensation or in terms, conditions or privileges of employment.
25 (b) For an employment agency to discriminate against any individual
26 because of age, race, creed, color, national origin, sexual orientation,
27 gender identity or expression, military status, sex, disability, predis-
28 posing genetic characteristics, or marital status, in receiving, classi-
29 fying, disposing or otherwise acting upon applications for its services
30 or in referring an applicant or applicants to an employer or employers.
31 (c) For a labor organization, because of the age, race, creed, color,
32 national origin, sexual orientation, gender identity or expression,
33 military status, sex, disability, predisposing genetic characteristics,
34 or marital status of any individual, to exclude or to expel from its
35 membership such individual or to discriminate in any way against any of
36 its members or against any employer or any individual employed by an
37 employer.
38 (d) For any employer or employment agency to print or circulate or
39 cause to be printed or circulated any statement, advertisement or publi-
40 cation, or to use any form of application for employment or to make any
41 inquiry in connection with prospective employment, which expresses
42 directly or indirectly, any limitation, specification or discrimination
43 as to age, race, creed, color, national origin, sexual orientation,
44 gender identity or expression, military status, sex, disability, predis-
45 posing genetic characteristics, or marital status, or any intent to make
46 any such limitation, specification or discrimination, unless based upon
47 a bona fide occupational qualification; provided, however, that neither
48 this paragraph nor any provision of this chapter or other law shall be
49 construed to prohibit the department of civil service or the department
50 of personnel of any city containing more than one county from requesting
51 information from applicants for civil service examinations concerning
52 any of the aforementioned characteristics, other than sexual orientation
53 or gender identity or expression, for the purpose of conducting studies
54 to identify and resolve possible problems in recruitment and testing of
55 members of minority groups to insure the fairest possible and equal
56 opportunities for employment in the civil service for all persons,
A. 5039 4
1 regardless of age, race, creed, color, national origin, sexual orien-
2 tation, gender identity or expression, military status, sex, disability,
3 predisposing genetic characteristics, or marital status.
4 § 6. Paragraphs (b), (c) and (d) of subdivision 1-a of section 296 of
5 the executive law, as amended by chapter 106 of the laws of 2003, are
6 amended to read as follows:
7 (b) To deny to or withhold from any person because of race, creed,
8 color, national origin, sexual orientation, gender identity or
9 expression, military status, sex, age, disability, or marital status,
10 the right to be admitted to or participate in a guidance program, an
11 apprenticeship training program, on-the-job training program, executive
12 training program, or other occupational training or retraining program;
13 (c) To discriminate against any person in his or her pursuit of such
14 programs or to discriminate against such a person in the terms, condi-
15 tions or privileges of such programs because of race, creed, color,
16 national origin, sexual orientation, gender identity or expression,
17 military status, sex, age, disability or marital status;
18 (d) To print or circulate or cause to be printed or circulated any
19 statement, advertisement or publication, or to use any form of applica-
20 tion for such programs or to make any inquiry in connection with such
21 program which expresses, directly or indirectly, any limitation, spec-
22 ification or discrimination as to race, creed, color, national origin,
23 sexual orientation, gender identity or expression, military status, sex,
24 age, disability or marital status, or any intention to make any such
25 limitation, specification or discrimination, unless based on a bona fide
26 occupational qualification.
27 § 7. Paragraph (a) of subdivision 2 of section 296 of the executive
28 law, as amended by chapter 106 of the laws of 2003, is amended to read
29 as follows:
30 (a) It shall be an unlawful discriminatory practice for any person,
31 being the owner, lessee, proprietor, manager, superintendent, agent or
32 employee of any place of public accommodation, resort or amusement,
33 because of the race, creed, color, national origin, sexual orientation,
34 gender identity or expression, military status, sex, [or] disability or
35 marital status of any person, directly or indirectly, to refuse, with-
36 hold from or deny to such person any of the accommodations, advantages,
37 facilities or privileges thereof, including the extension of credit, or,
38 directly or indirectly, to publish, circulate, issue, display, post or
39 mail any written or printed communication, notice or advertisement, to
40 the effect that any of the accommodations, advantages, facilities and
41 privileges of any such place shall be refused, withheld from or denied
42 to any person on account of race, creed, color, national origin, sexual
43 orientation, gender identity or expression, military status, sex, [or]
44 disability or marital status, or that the patronage or custom thereat of
45 any person of or purporting to be of any particular race, creed, color,
46 national origin, sexual orientation, gender identity or expression,
47 military status, sex or marital status, or having a disability is unwel-
48 come, objectionable or not acceptable, desired or solicited.
49 § 8. Paragraphs (a), (b), (c) and (c-1) of subdivision 2-a of section
50 296 of the executive law, paragraphs (a), (b) and (c) as amended and
51 paragraph (c-1) as added by chapter 106 of the laws of 2003, are amended
52 to read as follows:
53 (a) To refuse to sell, rent or lease or otherwise to deny to or with-
54 hold from any person or group of persons such housing accommodations
55 because of the race, creed, color, disability, national origin, sexual
56 orientation, gender identity or expression, military status, age, sex,
A. 5039 5
1 marital status, or familial status of such person or persons, or to
2 represent that any housing accommodation or land is not available for
3 inspection, sale, rental or lease when in fact it is so available.
4 (b) To discriminate against any person because of his or her race,
5 creed, color, disability, national origin, sexual orientation, gender
6 identity or expression, military status, age, sex, marital status, or
7 familial status in the terms, conditions or privileges of any publicly-
8 assisted housing accommodations or in the furnishing of facilities or
9 services in connection therewith.
10 (c) To cause to be made any written or oral inquiry or record concern-
11 ing the race, creed, color, disability, national origin, sexual orien-
12 tation, gender identity or expression, membership in the reserve armed
13 forces of the United States or in the organized militia of the state,
14 age, sex, marital status, or familial status of a person seeking to rent
15 or lease any publicly-assisted housing accommodation; provided, however,
16 that nothing in this subdivision shall prohibit a member of the reserve
17 armed forces of the United States or in the organized militia of the
18 state from voluntarily disclosing such membership.
19 (c-1) To print or circulate or cause to be printed or circulated any
20 statement, advertisement or publication, or to use any form of applica-
21 tion for the purchase, rental or lease of such housing accommodation or
22 to make any record or inquiry in connection with the prospective
23 purchase, rental or lease of such a housing accommodation which
24 expresses, directly or indirectly, any limitation, specification or
25 discrimination as to race, creed, color, national origin, sexual orien-
26 tation, gender identity or expression, military status, sex, age, disa-
27 bility, marital status, or familial status, or any intent to make any
28 such limitation, specification or discrimination.
29 § 9. Subdivision 3-b of section 296 of the executive law, as amended
30 by chapter 106 of the laws of 2003, is amended to read as follows:
31 3-b. It shall be an unlawful discriminatory practice for any real
32 estate broker, real estate salesperson or employee or agent thereof or
33 any other individual, corporation, partnership or organization for the
34 purpose of inducing a real estate transaction from which any such person
35 or any of its stockholders or members may benefit financially, to repre-
36 sent that a change has occurred or will or may occur in the composition
37 with respect to race, creed, color, national origin, sexual orientation,
38 gender identity or expression, military status, sex, disability, marital
39 status, or familial status of the owners or occupants in the block,
40 neighborhood or area in which the real property is located, and to
41 represent, directly or indirectly, that this change will or may result
42 in undesirable consequences in the block, neighborhood or area in which
43 the real property is located, including but not limited to the lowering
44 of property values, an increase in criminal or anti-social behavior, or
45 a decline in the quality of schools or other facilities.
46 § 10. Subdivision 4 of section 296 of the executive law, as amended by
47 chapter 106 of the laws of 2003, is amended to read as follows:
48 4. It shall be an unlawful discriminatory practice for an education
49 corporation or association which holds itself out to the public to be
50 non-sectarian and exempt from taxation pursuant to the provisions of
51 article four of the real property tax law to deny the use of its facili-
52 ties to any person otherwise qualified, or to permit the harassment of
53 any student or applicant, by reason of his race, color, religion, disa-
54 bility, national origin, sexual orientation, gender identity or
55 expression, military status, sex, age or marital status, except that any
A. 5039 6
1 such institution which establishes or maintains a policy of educating
2 persons of one sex exclusively may admit students of only one sex.
3 § 11. Subdivision 5 of section 296 of the executive law, as amended by
4 chapter 106 of the laws of 2003, is amended to read as follows:
5 5. (a) It shall be an unlawful discriminatory practice for the owner,
6 lessee, sub-lessee, assignee, or managing agent of, or other person
7 having the right to sell, rent or lease a housing accommodation,
8 constructed or to be constructed, or any agent or employee thereof:
9 (1) To refuse to sell, rent, lease or otherwise to deny to or withhold
10 from any person or group of persons such a housing accommodation because
11 of the race, creed, color, national origin, sexual orientation, gender
12 identity or expression, military status, sex, age, disability, marital
13 status, or familial status of such person or persons, or to represent
14 that any housing accommodation or land is not available for inspection,
15 sale, rental or lease when in fact it is so available.
16 (2) To discriminate against any person because of race, creed, color,
17 national origin, sexual orientation, gender identity or expression,
18 military status, sex, age, disability, marital status, or familial
19 status in the terms, conditions or privileges of the sale, rental or
20 lease of any such housing accommodation or in the furnishing of facili-
21 ties or services in connection therewith.
22 (3) To print or circulate or cause to be printed or circulated any
23 statement, advertisement or publication, or to use any form of applica-
24 tion for the purchase, rental or lease of such housing accommodation or
25 to make any record or inquiry in connection with the prospective
26 purchase, rental or lease of such a housing accommodation which
27 expresses, directly or indirectly, any limitation, specification or
28 discrimination as to race, creed, color, national origin, sexual orien-
29 tation, gender identity or expression, military status, sex, age, disa-
30 bility, marital status, or familial status, or any intent to make any
31 such limitation, specification or discrimination.
32 The provisions of this paragraph (a) shall not apply (1) to the rental
33 of a housing accommodation in a building which contains housing accommo-
34 dations for not more than two families living independently of each
35 other, if the owner resides in one of such housing accommodations, (2)
36 to the restriction of the rental of all rooms in a housing accommodation
37 to individuals of the same sex or (3) to the rental of a room or rooms
38 in a housing accommodation, if such rental is by the occupant of the
39 housing accommodation or by the owner of the housing accommodation and
40 the owner resides in such housing accommodation or (4) solely with
41 respect to age and familial status to the restriction of the sale,
42 rental or lease of housing accommodations exclusively to persons sixty-
43 two years of age or older and the spouse of any such person, or for
44 housing intended and operated for occupancy by at least one person
45 fifty-five years of age or older per unit. In determining whether hous-
46 ing is intended and operated for occupancy by persons fifty-five years
47 of age or older, Sec. 807(b) (2) (c) (42 U.S.C. 3607 (b) (2) (c)) of the
48 federal Fair Housing Act of 1988, as amended, shall apply.
49 (b) It shall be an unlawful discriminatory practice for the owner,
50 lessee, sub-lessee, or managing agent of, or other person having the
51 right of ownership or possession of or the right to sell, rent or lease,
52 land or commercial space:
53 (1) To refuse to sell, rent, lease or otherwise deny to or withhold
54 from any person or group of persons land or commercial space because of
55 the race, creed, color, national origin, sexual orientation, gender
56 identity or expression, military status, sex, age, disability, marital
A. 5039 7
1 status, or familial status of such person or persons, or to represent
2 that any housing accommodation or land is not available for inspection,
3 sale, rental or lease when in fact it is so available;
4 (2) To discriminate against any person because of race, creed, color,
5 national origin, sexual orientation, gender identity or expression,
6 military status, sex, age, disability, marital status, or familial
7 status in the terms, conditions or privileges of the sale, rental or
8 lease of any such land or commercial space; or in the furnishing of
9 facilities or services in connection therewith;
10 (3) To print or circulate or cause to be printed or circulated any
11 statement, advertisement or publication, or to use any form of applica-
12 tion for the purchase, rental or lease of such land or commercial space
13 or to make any record or inquiry in connection with the prospective
14 purchase, rental or lease of such land or commercial space which
15 expresses, directly or indirectly, any limitation, specification or
16 discrimination as to race, creed, color, national origin, sexual orien-
17 tation, gender identity or expression, military status, sex, age, disa-
18 bility, marital status, or familial status; or any intent to make any
19 such limitation, specification or discrimination.
20 (4) With respect to age and familial status, the provisions of this
21 paragraph shall not apply to the restriction of the sale, rental or
22 lease of land or commercial space exclusively to persons fifty-five
23 years of age or older and the spouse of any such person, or to the
24 restriction of the sale, rental or lease of land to be used for the
25 construction, or location of housing accommodations exclusively for
26 persons sixty-two years of age or older, or intended and operated for
27 occupancy by at least one person fifty-five years of age or older per
28 unit. In determining whether housing is intended and operated for occu-
29 pancy by persons fifty-five years of age or older, Sec. 807(b) (2) (c)
30 (42 U.S.C. 3607(b) (2) (c)) of the federal Fair Housing Act of 1988, as
31 amended, shall apply.
32 (c) It shall be an unlawful discriminatory practice for any real
33 estate broker, real estate salesperson or employee or agent thereof:
34 (1) To refuse to sell, rent or lease any housing accommodation, land
35 or commercial space to any person or group of persons or to refuse to
36 negotiate for the sale, rental or lease, of any housing accommodation,
37 land or commercial space to any person or group of persons because of
38 the race, creed, color, national origin, sexual orientation, gender
39 identity or expression, military status, sex, age, disability, marital
40 status, or familial status of such person or persons, or to represent
41 that any housing accommodation, land or commercial space is not avail-
42 able for inspection, sale, rental or lease when in fact it is so avail-
43 able, or otherwise to deny or withhold any housing accommodation, land
44 or commercial space or any facilities of any housing accommodation, land
45 or commercial space from any person or group of persons because of the
46 race, creed, color, national origin, sexual orientation, gender identity
47 or expression, military status, sex, age, disability, marital status, or
48 familial status of such person or persons.
49 (2) To print or circulate or cause to be printed or circulated any
50 statement, advertisement or publication, or to use any form of applica-
51 tion for the purchase, rental or lease of any housing accommodation,
52 land or commercial space or to make any record or inquiry in connection
53 with the prospective purchase, rental or lease of any housing accommo-
54 dation, land or commercial space which expresses, directly or indirect-
55 ly, any limitation, specification, or discrimination as to race, creed,
56 color, national origin, sexual orientation, gender identity or
A. 5039 8
1 expression, military status, sex, age, disability, marital status, or
2 familial status; or any intent to make any such limitation, specifica-
3 tion or discrimination.
4 (3) With respect to age and familial status, the provisions of this
5 paragraph shall not apply to the restriction of the sale, rental or
6 lease of any housing accommodation, land or commercial space exclusively
7 to persons fifty-five years of age or older and the spouse of any such
8 person, or to the restriction of the sale, rental or lease of any hous-
9 ing accommodation or land to be used for the construction or location of
10 housing accommodations for persons sixty-two years of age or older, or
11 intended and operated for occupancy by at least one person fifty-five
12 years of age or older per unit. In determining whether housing is
13 intended and operated for occupancy by persons fifty-five years of age
14 or older, Sec. 807 (b) (2) (c) (42 U.S.C. 3607 (b) (2) (c)) of the
15 federal Fair Housing Act of 1988, as amended, shall apply.
16 (d) It shall be an unlawful discriminatory practice for any real
17 estate board, because of the race, creed, color, national origin, sexual
18 orientation, gender identity or expression, military status, age, sex,
19 disability, marital status, or familial status of any individual who is
20 otherwise qualified for membership, to exclude or expel such individual
21 from membership, or to discriminate against such individual in the
22 terms, conditions and privileges of membership in such board.
23 (e) It shall be an unlawful discriminatory practice for the owner,
24 proprietor or managing agent of, or other person having the right to
25 provide care and services in, a private proprietary nursing home, conva-
26 lescent home, or home for adults, or an intermediate care facility, as
27 defined in section two of the social services law, heretofore
28 constructed, or to be constructed, or any agent or employee thereof, to
29 refuse to provide services and care in such home or facility to any
30 individual or to discriminate against any individual in the terms,
31 conditions, and privileges of such services and care solely because such
32 individual is a blind person. For purposes of this paragraph, a "blind
33 person" shall mean a person who is registered as a blind person with the
34 commission for the visually handicapped and who meets the definition of
35 a "blind person" pursuant to section three of chapter four hundred
36 fifteen of the laws of nineteen hundred thirteen entitled "An act to
37 establish a state commission for improving the condition of the blind of
38 the state of New York, and making an appropriation therefor".
39 (f) The provisions of this subdivision, as they relate to age, shall
40 not apply to persons under the age of eighteen years.
41 (g) It shall be an unlawful discriminatory practice for any person
42 offering or providing housing accommodations, land or commercial space
43 as described in paragraphs (a), (b), and (c) of this subdivision to make
44 or cause to be made any written or oral inquiry or record concerning
45 membership of any person in the state organized militia in relation to
46 the purchase, rental or lease of such housing accommodation, land, or
47 commercial space, provided, however, that nothing in this subdivision
48 shall prohibit a member of the state organized militia from voluntarily
49 disclosing such membership.
50 § 12. Paragraph (a) of subdivision 9 of section 296 of the executive
51 law, as amended by chapter 106 of the laws of 2003, is amended to read
52 as follows:
53 (a) It shall be an unlawful discriminatory practice for any fire
54 department or fire company therein, through any member or members there-
55 of, officers, board of fire commissioners or other body or office having
56 power of appointment of volunteer firefighters, directly or indirectly,
A. 5039 9
1 by ritualistic practice, constitutional or by-law prescription, by tacit
2 agreement among its members, or otherwise, to deny to any individual
3 membership in any volunteer fire department or fire company therein, or
4 to expel or discriminate against any volunteer member of a fire depart-
5 ment or fire company therein, because of the race, creed, color,
6 national origin, sexual orientation, gender identity or expression,
7 military status, sex or marital status of such individual.
8 § 13. Subdivision 13 of section 296 of the executive law, as amended
9 by chapter 196 of the laws of 2010, is amended to read as follows:
10 13. It shall be an unlawful discriminatory practice (i) for any person
11 to boycott or blacklist, or to refuse to buy from, sell to or trade
12 with, or otherwise discriminate against any person, because of the race,
13 creed, color, national origin, sexual orientation, gender identity or
14 expression, military status, sex, or disability of such person, or of
15 such person's partners, members, stockholders, directors, officers,
16 managers, superintendents, agents, employees, business associates,
17 suppliers or customers, or (ii) for any person wilfully to do any act or
18 refrain from doing any act which enables any such person to take such
19 action. This subdivision shall not apply to:
20 (a) Boycotts connected with labor disputes; or
21 (b) Boycotts to protest unlawful discriminatory practices.
22 § 14. Subdivisions 1, 2 and 3 of section 296-a of the executive law,
23 as amended by chapter 106 of the laws of 2003, are amended to read as
24 follows:
25 1. It shall be an unlawful discriminatory practice for any creditor or
26 any officer, agent or employee thereof:
27 a. In the case of applications for credit with respect to the
28 purchase, acquisition, construction, rehabilitation, repair or mainte-
29 nance of any housing accommodation, land or commercial space to discrim-
30 inate against any such applicant because of the race, creed, color,
31 national origin, sexual orientation, gender identity or expression,
32 military status, age, sex, marital status, disability, or familial
33 status of such applicant or applicants or any member, stockholder,
34 director, officer or employee of such applicant or applicants, or of the
35 prospective occupants or tenants of such housing accommodation, land or
36 commercial space, in the granting, withholding, extending or renewing,
37 or in the fixing of the rates, terms or conditions of, any such credit;
38 b. To discriminate in the granting, withholding, extending or renew-
39 ing, or in the fixing of the rates, terms or conditions of, any form of
40 credit, on the basis of race, creed, color, national origin, sexual
41 orientation, gender identity or expression, military status, age, sex,
42 marital status, disability, or familial status;
43 c. To use any form of application for credit or use or make any record
44 or inquiry which expresses, directly or indirectly, any limitation,
45 specification, or discrimination as to race, creed, color, national
46 origin, sexual orientation, gender identity or expression, military
47 status, age, sex, marital status, disability, or familial status;
48 d. To make any inquiry of an applicant concerning his or her capacity
49 to reproduce, or his or her use or advocacy of any form of birth control
50 or family planning;
51 e. To refuse to consider sources of an applicant's income or to
52 subject an applicant's income to discounting, in whole or in part,
53 because of an applicant's race, creed, color, national origin, sexual
54 orientation, gender identity or expression, military status, age, sex,
55 marital status, childbearing potential, disability, or familial status;
A. 5039 10
1 f. To discriminate against a married person because such person
2 neither uses nor is known by the surname of his or her spouse.
3 This paragraph shall not apply to any situation where the use of a
4 surname would constitute or result in a criminal act.
5 2. Without limiting the generality of subdivision one of this section,
6 it shall be considered discriminatory if, because of an applicant's or
7 class of applicants' race, creed, color, national origin, sexual orien-
8 tation, gender identity or expression, military status, age, sex, mari-
9 tal status or disability, or familial status, (i) an applicant or class
10 of applicants is denied credit in circumstances where other applicants
11 of like overall credit worthiness are granted credit, or (ii) special
12 requirements or conditions, such as requiring co-obligors or reapplica-
13 tion upon marriage, are imposed upon an applicant or class of applicants
14 in circumstances where similar requirements or conditions are not
15 imposed upon other applicants of like overall credit worthiness.
16 3. It shall not be considered discriminatory if credit differen-
17 tiations or decisions are based upon factually supportable, objective
18 differences in applicants' overall credit worthiness, which may include
19 reference to such factors as current income, assets and prior credit
20 history of such applicants, as well as reference to any other relevant
21 factually supportable data; provided, however, that no creditor shall
22 consider, in evaluating the credit worthiness of an applicant, aggregate
23 statistics or assumptions relating to race, creed, color, national
24 origin, sexual orientation, gender identity or expression, military
25 status, sex, marital status or disability, or to the likelihood of any
26 group of persons bearing or rearing children, or for that reason receiv-
27 ing diminished or interrupted income in the future.
28 § 15. Paragraph (b) of subdivision 2 of section 296-b of the executive
29 law, as added by chapter 481 of the laws of 2010, is amended to read as
30 follows:
31 (b) Subject a domestic worker to unwelcome harassment based on gender,
32 race, religion, sexual orientation, gender identity or expression or
33 national origin, where such harassment has the purpose or effect of
34 unreasonably interfering with an individual's work performance by creat-
35 ing an intimidating, hostile, or offensive working environment.
36 § 16. Section 40-c of the civil rights law, as amended by chapter 2 of
37 the laws of 2002, is amended to read as follows:
38 § 40-c. Discrimination. 1. All persons within the jurisdiction of this
39 state shall be entitled to the equal protection of the laws of this
40 state or any subdivision thereof.
41 2. No person shall, because of race, creed, color, national origin,
42 sex, marital status, sexual orientation, gender identity or expression,
43 or disability, as such term is defined in section two hundred ninety-two
44 of the executive law, be subjected to any discrimination in his or her
45 civil rights, or to any harassment, as defined in section 240.25 of the
46 penal law, in the exercise thereof, by any other person or by any firm,
47 corporation or institution, or by the state or any agency or subdivision
48 of the state.
49 § 17. Paragraph (a) of subdivision 1 of section 313 of the education
50 law, as amended by chapter 2 of the laws of 2002, is amended to read as
51 follows:
52 (a) It is hereby declared to be the policy of the state that the Amer-
53 ican ideal of equality of opportunity requires that students, otherwise
54 qualified, be admitted to educational institutions and be given access
55 to all the educational programs and courses operated or provided by such
56 institutions without regard to race, color, sex, religion, creed, mari-
A. 5039 11
1 tal status, age, sexual orientation as defined in section two hundred
2 ninety-two of the executive law, gender identity or expression as
3 defined in section two hundred ninety-two of the executive law, or
4 national origin, except that, with regard to religious or denominational
5 educational institutions, students, otherwise qualified, shall have the
6 equal opportunity to attend therein without discrimination because of
7 race, color, sex, marital status, age, sexual orientation as defined in
8 section two hundred ninety-two of the executive law, gender identity or
9 expression as defined in section two hundred ninety-two of the executive
10 law, or national origin. It is a fundamental American right for members
11 of various religious faiths to establish and maintain educational insti-
12 tutions exclusively or primarily for students of their own religious
13 faith or to effectuate the religious principles in furtherance of which
14 they are maintained. Nothing herein contained shall impair or abridge
15 that right.
16 § 18. Subdivision 3 of section 313 of the education law, as amended by
17 chapter 2 of the laws of 2002, is amended to read as follows:
18 (3) Unfair educational practices. It shall be an unfair educational
19 practice for an educational institution after September fifteenth, nine-
20 teen hundred forty-eight:
21 (a) To exclude or limit or otherwise discriminate against any person
22 or persons seeking admission as students to such institution or to any
23 educational program or course operated or provided by such institution
24 because of race, religion, creed, sex, color, marital status, age, sexu-
25 al orientation as defined in section two hundred ninety-two of the exec-
26 utive law, gender identity or expression as defined in section two
27 hundred ninety-two of the executive law, or national origin; except that
28 nothing in this section shall be deemed to affect, in any way, the right
29 of a religious or denominational educational institution to select its
30 students exclusively or primarily from members of such religion or
31 denomination or from giving preference in such selection to such members
32 or to make such selection of its students as is calculated by such
33 institution to promote the religious principles for which it is estab-
34 lished or maintained. Nothing herein contained shall impair or abridge
35 the right of an independent institution, which establishes or maintains
36 a policy of educating persons of one sex exclusively, to admit students
37 of only one sex.
38 (b) To penalize any individual because he or she has initiated, testi-
39 fied, participated or assisted in any proceedings under this section.
40 (c) To accept any endowment or gift of money or property conditioned
41 upon teaching the doctrine of supremacy of any particular race.
42 (d) With respect to any individual who withdraws from attendance to
43 serve on active duty in the armed forces of the United States in time of
44 war, including any individual who withdrew from attendance on or after
45 August second, nineteen hundred ninety to serve on active duty in the
46 armed forces of the United States in the Persian Gulf conflict: (i) to
47 deny or limit the readmission of such individual to such institution or
48 to any educational program or course operated or provided by such insti-
49 tution because of such withdrawal from attendance or because of the
50 failure to complete any educational program or course due to such with-
51 drawal; (ii) to impose any academic penalty on such person because of
52 such withdrawal or because of the failure to complete any educational
53 program or course due to such withdrawal; (iii) to reduce or eliminate
54 any financial aid award granted to such individual which could not be
55 used, in whole or part, because of such withdrawal or because of the
56 failure to complete any educational program or course due to such with-
A. 5039 12
1 drawal; or (iv) to fail to provide a credit or refund of tuition and
2 fees paid by such individual for any semester, term or quarter not
3 completed because of such withdrawal or because of the failure to
4 complete any program or course due to such withdrawal.
5 (e) It shall not be an unfair educational practice for any educational
6 institution to use criteria other than race, religion, creed, sex,
7 color, marital status, age, sexual orientation as defined in section two
8 hundred ninety-two of the executive law, gender identity or expression
9 as defined in section two hundred ninety-two of the executive law, or
10 national origin in the admission of students to such institution or to
11 any of the educational programs and courses operated or provided by such
12 institution.
13 § 19. Section 485.00 of the penal law, as added by chapter 107 of the
14 laws of 2000, is amended to read as follows:
15 § 485.00 Legislative findings.
16 The legislature finds and determines as follows: criminal acts involv-
17 ing violence, intimidation and destruction of property based upon bias
18 and prejudice have become more prevalent in New York state in recent
19 years. The intolerable truth is that in these crimes, commonly and
20 justly referred to as "hate crimes", victims are intentionally selected,
21 in whole or in part, because of their race, color, national origin,
22 ancestry, gender, gender identity or expression, religion, religious
23 practice, age, disability or sexual orientation. Hate crimes do more
24 than threaten the safety and welfare of all citizens. They inflict on
25 victims incalculable physical and emotional damage and tear at the very
26 fabric of free society. Crimes motivated by invidious hatred toward
27 particular groups not only harm individual victims but send a powerful
28 message of intolerance and discrimination to all members of the group to
29 which the victim belongs. Hate crimes can and do intimidate and disrupt
30 entire communities and vitiate the civility that is essential to healthy
31 democratic processes. In a democratic society, citizens cannot be
32 required to approve of the beliefs and practices of others, but must
33 never commit criminal acts on account of them. Current law does not
34 adequately recognize the harm to public order and individual safety that
35 hate crimes cause. Therefore, our laws must be strengthened to provide
36 clear recognition of the gravity of hate crimes and the compelling
37 importance of preventing their recurrence.
38 Accordingly, the legislature finds and declares that hate crimes
39 should be prosecuted and punished with appropriate severity.
40 § 20. Subdivisions 1, 2 and 4 of section 485.05 of the penal law, as
41 added by chapter 107 of the laws of 2000, are amended to read as
42 follows:
43 1. A person commits a hate crime when he or she commits a specified
44 offense and either:
45 (a) intentionally selects the person against whom the offense is
46 committed or intended to be committed in whole or in substantial part
47 because of a belief or perception regarding the race, color, national
48 origin, ancestry, gender, gender identity or expression, religion, reli-
49 gious practice, age, disability or sexual orientation of a person,
50 regardless of whether the belief or perception is correct, or
51 (b) intentionally commits the act or acts constituting the offense in
52 whole or in substantial part because of a belief or perception regarding
53 the race, color, national origin, ancestry, gender, gender identity or
54 expression, religion, religious practice, age, disability or sexual
55 orientation of a person, regardless of whether the belief or perception
56 is correct.
A. 5039 13
1 2. Proof of race, color, national origin, ancestry, gender, gender
2 identity or expression, religion, religious practice, age, disability or
3 sexual orientation of the defendant, the victim or of both the defendant
4 and the victim does not, by itself, constitute legally sufficient
5 evidence satisfying the people's burden under paragraph (a) or (b) of
6 subdivision one of this section.
7 4. For purposes of this section:
8 (a) the term "age" means sixty years old or more;
9 (b) the term "disability" means a physical or mental impairment that
10 substantially limits a major life activity[.];
11 (c) the term "gender identity or expression" means having or being
12 perceived as having a gender identity, self-image, appearance, behavior
13 or expression whether or not that gender identity, self-image, appear-
14 ance, behavior or expression is different from that traditionally asso-
15 ciated with the sex assigned to that person at birth.
16 § 21. Subdivision 3 of section 240.30 of the penal law, as amended by
17 chapter 510 of the laws of 2008, is amended to read as follows:
18 3. Strikes, shoves, kicks, or otherwise subjects another person to
19 physical contact, or attempts or threatens to do the same because of a
20 belief or perception regarding such person's race, color, national
21 origin, ancestry, gender, gender identity or expression, religion, reli-
22 gious practice, age, disability or sexual orientation, regardless of
23 whether the belief or perception is correct; or
24 § 22. The opening paragraph of section 240.31 of the penal law, as
25 amended by chapter 49 of the laws of 2006, is amended to read as
26 follows:
27 A person is guilty of aggravated harassment in the first degree when
28 with intent to harass, annoy, threaten or alarm another person, because
29 of a belief or perception regarding such person's race, color, national
30 origin, ancestry, gender, gender identity or expression, religion, reli-
31 gious practice, age, disability or sexual orientation, regardless of
32 whether the belief or perception is correct, he or she:
33 § 23. Section 240.00 of the penal law is amended by adding a new
34 subdivision 7 to read as follows:
35 7. "Gender identity or expression" means having or being perceived as
36 having a gender identity, self-image, appearance, behavior or expression
37 whether or not that gender identity, self-image, appearance, behavior or
38 expression is different from that traditionally associated with the sex
39 assigned to that person at birth.
40 § 24. Paragraph (c) of subdivision 7 of section 200.50 of the criminal
41 procedure law, as amended by chapter 7 of the laws of 2007, is amended
42 to read as follows:
43 (c) in the case of any hate crime, as defined in section 485.05 of the
44 penal law, specifies, as applicable, that the defendant or defendants
45 intentionally selected the person against whom the offense was committed
46 or intended to be committed; or intentionally committed the act or acts
47 constituting the offense, in whole or in substantial part because of a
48 belief or perception regarding the race, color, national origin, ances-
49 try, gender, gender identity or expression, religion, religious prac-
50 tice, age, disability or sexual orientation of a person; and
51 § 25. This act shall take effect on the thirtieth day after it shall
52 have become a law; provided, however, that sections nineteen through
53 twenty-four of this act shall take effect on the first of November next
54 succeeding the date on which it shall have become a law.