Gender Identity Watch has submitted comment to the New York State Division of Human Rights with regard to the Division’s proposed gender identity regulations. You can read Gender Identity Watch‘s comment here.
An excerpt of the comment letter follows:
We note that the proposed rule would adopt a definition of “gender identity” that is entirely subjective. The current form of the proposed definition states that “gender identity” is “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.” This definition is only understood in a culture in which sex stereotypes exist, and is only understood to the extent that one is willing to believe those stereotypes about Women and Girls. We also note that this definition violates the Convention on the Elimination of all Forms of Discrimination Against Women (“CEDAW”), which requires that state parties “must take all appropriate measures to modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.”
Further, and more importantly, this proposed definition of “gender identity” does not require any objective proof. Rather, it merely requires the person seeking protection on the basis of “gender identity” to assert that he or she identifies as the sex opposite his or her sex at birth. Further, because current New York law prohibits discrimination based on sex in a “place of public accommodation,” which includes clinics, hospitals, bathhouses, swimming pools, gymnasiums and other spaces, this regulatory amendment to statutory law allows males to access space where Women and Girls have a reasonable expectation of privacy. To date, Women and Girls who object to sharing intimate, private space with males who “identify as female” have been labeled as “hateful” and “bigoted.” I would suggest that given the epidemic of violence Women and Girls experience at the hands of males, our objections to this overbroad public policy is more than reasonable and is worth, at the very least, a full, robust and fair public discussion. According to the National Crime Victimization Survey, which includes crimes that were not reported to the police, 232,960 women in the U.S. were raped or sexually assaulted in 2006; this is more than 600 women every day. There has been at least one reported case of a “transwoman” sexually assaulting women after accessing women-only space on the basis of this overbroad definition of gender identity. Where such harm is foreseeable, such harm is avoidable, and I urge the Division to consider the harm it will inflict upon Women and Girls if it moves forward with its plans to adopt these proposed regulations.
It further does not help Women and Girls to add “gender identity” to the definition of “sex” because the proposed rule eviscerates the ability of Women and Girls to seek an exemption from the Human Rights Law to preserve female-only spaces. Current Human Rights Law provides that “(n)othing in (the Human Rights Law) shall be construed to prevent the barring of any person, because of the sex of such person, from places of public accommodation, resort or amusement if the (D)ivision grants an exemption based on bona fide considerations of public policy; nor shall (the Human Rights Law) apply to the rental of rooms in a housing accommodation which restricts such rental to individuals of one sex (emphasis added).” This provision would allow the operators of a Women-only gym, locker room, bathroom, domestic violence shelter, rape crisis shelter, homeless shelter, and other similar spaces to seek an exemption from the Division to bar males from accessing their space. Under the Division’s proposed rule, a male asserting a “female” gender identity must be permitted to use space designated for the opposite sex and his chosen “gender identity” – without regard to any action taken on the part of that individual to change his physiology to “become female” (i.e., sex reassignment surgery.) This is blatantly unfair to Women and Girls, and puts Women and Girls in the position of having to pretend a male person is a Women or Girl if he “says so.” Indeed, such proposal is inconsistent with existing New York case law, which recognizes that people have a right to privacy on the basis of sex. In State Div. of Human Rights ex rel. Johnson v Oneida County Sheriff’s Department, the court found that a county sheriff’s department did not discriminate against a female deputy sheriff on the basis of sex when she did not obtain an appointment to position of sergeant. The court noted that uncontroverted testimony affirmed that the open position required the applicant to conduct daily announced and unannounced inspections of cell block areas to monitor security and sanitation conditions. The court concluded that because the inmates’ toilet and shower facilities were in open view to personnel walking by cells, it would violate the privacy rights of male inmates to have woman monitoring their activities. Surely, such privacy rights should also be afforded to Women and Girls accessing female-only spaces, regardless of the gender identity of the males seeking access to such space.
 CEDAW, Article 5(a). We note that the United States stands with such regressive countries as Iran and Sudan in not ratifying CEDAW. See, e.g., L. Baldez, “U.S. drops the ball on women’s rights,” CNN (March 8, 2013).
 See, for example, the case of Yvette Cormier, a Michigan Woman who was banned from a Planet Fitness in Midland, Michigan because she objected to the presence of a man who identified as a woman in the Women’s locker room. She is currently suing Planet Fitness for invasion of privacy, sexual harassment under state law banning sex discrimination in public accommodations, retaliation for invoking her rights under state law banning sex discrimination, breach of contract and intentional infliction of emotional distress. See also G. Vicci, “Planet Fitness Drops Members After Gender Identity Complaint,” WNEM (March 6, 2015).
 Bureau of Justice Statistics (table 2, page 15), “Criminal Victimization in the United States,” (2006).
 S. Pazzano, “A sex predator’s sick deception,” Toronto Sun (February 15, 2014). Transgender activists attempted to claim that the transwoman, Christopher Hambrook, “falsely” claimed to be transgender. However, Toby’s Law, the law enacted by the Ontario, Canada Legislature in 2012 to amend the Human Rights Code to ban discrimination based on gender identity and gender expression, has a similarly subjective definition of “gender identity;” to wit, “those characteristics that are linked to an individual’s intrinsic sense of self that is based on attributes reflected in the person’s psychological, behavioural and/or cognitive state. Gender identity may also refer to one’s intrinsic sense of manhood or womanhood. It is fundamentally different from, and not determinative of, sexual orientation.” Like the definition in this proposed rule, there is no requirement under Ontario law that “gender identity” require a medical diagnosis, or even medical intervention. Hambrook, thus, did not “falsely” claim to be transgender; he fit the very definition of it.
 NY CLS Exec § 296(2)(b).
 119 A.D.2d 1006, 500 N.Y.S.2d 995, 1986 N.Y. App. Div. LEXIS 55945 (N.Y. App. Div. 4th Dep’t 1986), aff’d, 70 N.Y.2d 974, 526 N.Y.S.2d 426, 521 N.E.2d 433, 1988 N.Y. LEXIS 79 (N.Y. 1988).