Text of NY A 4226 (2014)

S T A T E O F N E W Y O R K ________________________________________________________________________ 4226 2013-2014 Regular Sessions I N A S S E M B L Y February 1, 2013 ___________ Introduced by M. of A. GOTTFRIED, GLICK, O'DONNELL, BRENNAN, BRONSON, COOK, ORTIZ, HEVESI, TITONE, KELLNER, SCHIMEL, KAVANAGH, CAHILL, ENGLEBRIGHT, DINOWITZ, PAULIN, CASTRO, RYAN, ABINANTI, MOYA -- Multi- Sponsored by -- M. of A. AUBRY, BENEDETTO, BOYLAND, BUCHWALD, CYMBROW- ITZ, FAHY, FARRELL, GUNTHER, HOOPER, JACOBS, JAFFEE, LAVINE, LIFTON, V. LOPEZ, LUPARDO, MAGNARELLI, MAISEL, MARKEY, McDONALD, MILLMAN, OTIS, PEOPLES-STOKES, PERRY, PRETLOW, QUART, RAMOS, RIVERA, ROBERTS, ROBINSON, ROSENTHAL, SCARBOROUGH, SIMOTAS, SOLAGES, STECK, SWEENEY, THIELE, 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. LBD01192-01-3 A. 4226 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 S 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 S 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 S 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. 4226 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 S 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. 4226 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 S 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 S 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 S 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. 4226 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 S 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 S 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. 4226 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 S 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. 4226 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. 4226 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 S 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. 4226 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 S 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 S 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. 4226 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 S 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 S 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 S 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 S 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. 4226 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 S 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. 4226 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 S 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 S 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 S 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. 4226 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 S 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 S 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 S 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 S 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 S 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.