Text of NY A 5710 (2010)

S T A T E O F N E W Y O R K ________________________________________________________________________ S. 2406--A A. 5710--A Cal. No. 399 2009-2010 Regular Sessions S E N A T E - A S S E M B L Y February 19, 2009 ___________ IN SENATE -- Introduced by Sens. DUANE, ADAMS, BRESLIN, HASSELL-THOMP- SON, KRUEGER, PARKER, PERKINS, SAMPSON, SAVINO, SCHNEIDERMAN, SERRANO, SQUADRON, THOMPSON -- read twice and ordered printed, and when printed to be committed to the Committee on Investigations and Government Operations -- recommitted to the Committee on Investigations and Government Operations in accordance with Senate Rule 6, sec. 8 -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee IN ASSEMBLY -- Introduced by M. of A. GOTTFRIED, GLICK, O'DONNELL, BREN- NAN, CANESTRARI, COOK, ESPAILLAT, FIELDS, HOYT, ORTIZ, PERALTA, HEVE- SI, TITONE, CARROZZA, JEFFRIES, KELLNER, SCHIMEL, KAVANAGH, CAHILL, ENGLEBRIGHT, DINOWITZ -- Multi-Sponsored by -- M. of A. ALESSI, AUBRY, BENEDETTO, BING, BOYLAND, CHRISTENSEN, CYMBROWITZ, FARRELL, GIANARIS, GORDON, GUNTHER, HOOPER, JACOBS, JAFFEE, JOHN, KOON, LANCMAN, LAVINE, LIFTON, V. LOPEZ, LUPARDO, MAGNARELLI, MAISEL, MARKEY, McENENY, J. MILLER, MILLMAN, PAULIN, PEOPLES-STOKES, PERRY, PHEFFER, PRETLOW, RAMOS, N. RIVERA, ROBINSON, ROSENTHAL, SAYWARD, SCARBOROUGH, STIRPE, SWEENEY, THIELE, TOWNS, WEISENBERG, WRIGHT, ZEBROWSKI -- read once and referred to the Committee on Governmental Operations -- reported from committee, advanced to a third reading, amended and ordered reprinted, retaining its place on the order of third reading 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: EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD00798-02-0 S. 2406--A 2 A. 5710--A 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 14 access to employment, housing and other basic necessities of life, lead- 15 ing to deprivation and suffering. The legislature further recognizes 16 that this prejudice has fostered a general climate of hostility and 17 distrust, leading in some instances to physical violence against those 18 perceived to live in a gender identity or expression which is different 19 from that traditionally associated with the sex assigned to that person 20 at birth. 21 In so doing, the legislature makes clear its action is not intended to 22 promote any particular attitude, course of conduct or way of life. Rath- 23 er its purpose is to ensure that individuals who live in our free socie- 24 ty have the capacity to make their own choices, follow their own beliefs 25 and conduct their own lives as they see fit, consistent with existing 26 law. 27 The legislature further finds that, as court decisions have properly 28 held, New York's sex discrimination laws prohibit discrimination based 29 on gender stereotypes or because an individual has transitioned or 30 intends to transition from one gender to another. This legislation is 31 intended to codify this principle and to ensure that the public under- 32 stands that discrimination on the basis of gender identity and 33 expression is prohibited. 34 S 2. Subdivisions 1 and 2 of section 291 of the executive law, as 35 amended by chapter 106 of the laws of 2003, are amended to read as 36 follows: 37 1. The opportunity to obtain employment without discrimination because 38 of age, race, creed, color, national origin, sexual orientation, GENDER 39 IDENTITY OR EXPRESSION, military status, sex or marital status is hereby 40 recognized as and declared to be a civil right. 41 2. The opportunity to obtain education, the use of places of public 42 accommodation and the ownership, use and occupancy of housing accommo- 43 dations and commercial space without discrimination because of age, 44 race, creed, color, national origin, sexual orientation, GENDER IDENTITY 45 OR EXPRESSION, military status, sex or marital status, as specified in 46 section two hundred ninety-six of this article, is hereby recognized as 47 and declared to be a civil right. 48 S 3. Section 292 of the executive law is amended by adding a new 49 subdivision 35 to read as follows: 50 35. THE TERM "GENDER IDENTITY OR EXPRESSION" MEANS HAVING OR BEING 51 PERCEIVED AS HAVING A GENDER IDENTITY, SELF-IMAGE, APPEARANCE, BEHAVIOR 52 OR EXPRESSION WHETHER OR NOT THAT GENDER IDENTITY, SELF-IMAGE, APPEAR- 53 ANCE, BEHAVIOR OR EXPRESSION IS DIFFERENT FROM THAT TRADITIONALLY ASSO- 54 CIATED WITH THE SEX ASSIGNED TO THAT PERSON AT BIRTH. S. 2406--A 3 A. 5710--A 1 S 4. Subdivisions 8 and 9 of section 295 of the executive law, as 2 amended by chapter 106 of the laws of 2003, are amended to read as 3 follows: 4 8. To create such advisory councils, local, regional or state-wide, as 5 in its judgment will aid in effectuating the purposes of this article 6 and of section eleven of article one of the constitution of this state, 7 and the division may empower them to study the problems of discrimi- 8 nation in all or specific fields of human relationships or in specific 9 instances of discrimination because of age, race, creed, color, national 10 origin, sexual orientation, GENDER IDENTITY OR EXPRESSION, military 11 status, sex, disability or marital status and make recommendations to 12 the division for the development of policies and procedures in general 13 and in specific instances. The advisory councils also shall disseminate 14 information about the division's activities to organizations and indi- 15 viduals in their localities. Such advisory councils shall be composed of 16 representative citizens, serving without pay, but with reimbursement for 17 actual and necessary traveling expenses; and the division may make 18 provision for technical and clerical assistance to such councils and for 19 the expenses of such assistance. 20 9. To develop human rights plans and policies for the state and assist 21 in their execution and to make investigations and studies appropriate to 22 effectuate this article and to issue such publications and such results 23 of investigations and research as in its judgement will tend to inform 24 persons of the rights assured and remedies provided under this article, 25 to promote good-will and minimize or eliminate discrimination because of 26 age, race, creed, color, national origin, sexual orientation, GENDER 27 IDENTITY OR EXPRESSION, military status, sex, disability or marital 28 status. 29 S 5. Paragraphs (a), (b), (c) and (d) of subdivision 1 of section 296 30 of the executive law, paragraph (a) as amended by chapter 80 of the laws 31 of 2009, paragraphs (b), (c), and (d) as amended by chapter 75 of the 32 laws of 2005, are amended to read as follows: 33 (a) For an employer or licensing agency, because of an individual's 34 age, race, creed, color, national origin, sexual orientation, GENDER 35 IDENTITY OR EXPRESSION, military status, sex, disability, predisposing 36 genetic characteristics, marital status, or domestic violence victim 37 status, to refuse to hire or employ or to bar or to discharge from 38 employment such individual or to discriminate against such individual in 39 compensation or in terms, conditions or privileges of employment. 40 (b) For an employment agency to discriminate against any individual 41 because of age, race, creed, color, national origin, sexual orientation, 42 GENDER IDENTITY OR EXPRESSION, military status, sex, disability, predis- 43 posing genetic characteristics, or marital status, in receiving, classi- 44 fying, disposing or otherwise acting upon applications for its services 45 or in referring an applicant or applicants to an employer or employers. 46 (c) For a labor organization, because of the age, race, creed, color, 47 national origin, sexual orientation, GENDER IDENTITY OR EXPRESSION, 48 military status, sex, disability, predisposing genetic characteristics, 49 or marital status of any individual, to exclude or to expel from its 50 membership such individual or to discriminate in any way against any of 51 its members or against any employer or any individual employed by an 52 employer. 53 (d) For any employer or employment agency to print or circulate or 54 cause to be printed or circulated any statement, advertisement or publi- 55 cation, or to use any form of application for employment or to make any 56 inquiry in connection with prospective employment, which expresses S. 2406--A 4 A. 5710--A 1 directly or indirectly, any limitation, specification or discrimination 2 as to age, race, creed, color, national origin, sexual orientation, 3 GENDER IDENTITY OR EXPRESSION, military status, sex, disability, predis- 4 posing genetic characteristics, or marital status, or any intent to make 5 any such limitation, specification or discrimination, unless based upon 6 a bona fide occupational qualification; provided, however, that neither 7 this paragraph nor any provision of this chapter or other law shall be 8 construed to prohibit the department of civil service or the department 9 of personnel of any city containing more than one county from requesting 10 information from applicants for civil service examinations concerning 11 any of the aforementioned characteristics, other than sexual orientation 12 OR GENDER IDENTITY OR EXPRESSION, for the purpose of conducting studies 13 to identify and resolve possible problems in recruitment and testing of 14 members of minority groups to insure the fairest possible and equal 15 opportunities for employment in the civil service for all persons, 16 regardless of age, race, creed, color, national origin, sexual orien- 17 tation, GENDER IDENTITY OR EXPRESSION, military status, sex, disability, 18 predisposing genetic characteristics, or marital status. 19 S 6. Paragraphs (b), (c) and (d) of subdivision 1-a of section 296 of 20 the executive law, as amended by chapter 106 of the laws of 2003, are 21 amended to read as follows: 22 (b) To deny to or withhold from any person because of race, creed, 23 color, national origin, sexual orientation, GENDER IDENTITY OR 24 EXPRESSION, military status, sex, age, disability, or marital status, 25 the right to be admitted to or participate in a guidance program, an 26 apprenticeship training program, on-the-job training program, executive 27 training program, or other occupational training or retraining program; 28 (c) To discriminate against any person in his or her pursuit of such 29 programs or to discriminate against such a person in the terms, condi- 30 tions or privileges of such programs because of race, creed, color, 31 national origin, sexual orientation, GENDER IDENTITY OR EXPRESSION, 32 military status, sex, age, disability or marital status; 33 (d) To print or circulate or cause to be printed or circulated any 34 statement, advertisement or publication, or to use any form of applica- 35 tion for such programs or to make any inquiry in connection with such 36 program which expresses, directly or indirectly, any limitation, spec- 37 ification or discrimination as to race, creed, color, national origin, 38 sexual orientation, GENDER IDENTITY OR EXPRESSION, military status, sex, 39 age, disability or marital status, or any intention to make any such 40 limitation, specification or discrimination, unless based on a bona fide 41 occupational qualification. 42 S 7. Paragraph (a) of subdivision 2 of section 296 of the executive 43 law, as amended by chapter 106 of the laws of 2003, is amended to read 44 as follows: 45 (a) It shall be an unlawful discriminatory practice for any person, 46 being the owner, lessee, proprietor, manager, superintendent, agent or 47 employee of any place of public accommodation, resort or amusement, 48 because of the race, creed, color, national origin, sexual orientation, 49 GENDER IDENTITY OR EXPRESSION, military status, sex, [or] disability or 50 marital status of any person, directly or indirectly, to refuse, with- 51 hold from or deny to such person any of the accommodations, advantages, 52 facilities or privileges thereof, including the extension of credit, or, 53 directly or indirectly, to publish, circulate, issue, display, post or 54 mail any written or printed communication, notice or advertisement, to 55 the effect that any of the accommodations, advantages, facilities and 56 privileges of any such place shall be refused, withheld from or denied S. 2406--A 5 A. 5710--A 1 to any person on account of race, creed, color, national origin, sexual 2 orientation, GENDER IDENTITY OR EXPRESSION, military status, sex, [or] 3 disability or marital status, or that the patronage or custom thereat of 4 any person of or purporting to be of any particular race, creed, color, 5 national origin, sexual orientation, GENDER IDENTITY OR EXPRESSION, 6 military status, sex or marital status, or having a disability is unwel- 7 come, objectionable or not acceptable, desired or solicited. 8 S 8. Paragraphs (a), (b), (c) and (c-1) of subdivision 2-a of section 9 296 of the executive law, paragraphs (a), (b) and (c) as amended and 10 paragraph (c-1) as added by chapter 106 of the laws of 2003, are amended 11 to read as follows: 12 (a) To refuse to sell, rent or lease or otherwise to deny to or with- 13 hold from any person or group of persons such housing accommodations 14 because of the race, creed, color, disability, national origin, sexual 15 orientation, GENDER IDENTITY OR EXPRESSION, military status, age, sex, 16 marital status, or familial status of such person or persons, or to 17 represent that any housing accommodation or land is not available for 18 inspection, sale, rental or lease when in fact it is so available. 19 (b) To discriminate against any person because of his or her race, 20 creed, color, disability, national origin, sexual orientation, GENDER 21 IDENTITY OR EXPRESSION, military status, age, sex, marital status, or 22 familial status in the terms, conditions or privileges of any publicly- 23 assisted housing accommodations or in the furnishing of facilities or 24 services in connection therewith. 25 (c) To cause to be made any written or oral inquiry or record concern- 26 ing the race, creed, color, disability, national origin, sexual orien- 27 tation, GENDER IDENTITY OR EXPRESSION, membership in the reserve armed 28 forces of the United States or in the organized militia of the state, 29 age, sex, marital status, or familial status of a person seeking to rent 30 or lease any publicly-assisted housing accommodation; provided, however, 31 that nothing in this subdivision shall prohibit a member of the reserve 32 armed forces of the United States or in the organized militia of the 33 state from voluntarily disclosing such membership. 34 (c-1) To print or circulate or cause to be printed or circulated any 35 statement, advertisement or publication, or to use any form of applica- 36 tion for the purchase, rental or lease of such housing accommodation or 37 to make any record or inquiry in connection with the prospective 38 purchase, rental or lease of such a housing accommodation which 39 expresses, directly or indirectly, any limitation, specification or 40 discrimination as to race, creed, color, national origin, sexual orien- 41 tation, GENDER IDENTITY OR EXPRESSION, military status, sex, age, disa- 42 bility, marital status, or familial status, or any intent to make any 43 such limitation, specification or discrimination. 44 S 9. Subdivision 3-b of section 296 of the executive law, as amended 45 by chapter 106 of the laws of 2003, is amended to read as follows: 46 3-b. It shall be an unlawful discriminatory practice for any real 47 estate broker, real estate salesperson or employee or agent thereof or 48 any other individual, corporation, partnership or organization for the 49 purpose of inducing a real estate transaction from which any such person 50 or any of its stockholders or members may benefit financially, to repre- 51 sent that a change has occurred or will or may occur in the composition 52 with respect to race, creed, color, national origin, sexual orientation, 53 GENDER IDENTITY OR EXPRESSION, military status, sex, disability, marital 54 status, or familial status of the owners or occupants in the block, 55 neighborhood or area in which the real property is located, and to 56 represent, directly or indirectly, that this change will or may result S. 2406--A 6 A. 5710--A 1 in undesirable consequences in the block, neighborhood or area in which 2 the real property is located, including but not limited to the lowering 3 of property values, an increase in criminal or anti-social behavior, or 4 a decline in the quality of schools or other facilities. 5 S 10. Subdivision 4 of section 296 of the executive law, as amended by 6 chapter 106 of the laws of 2003, is amended to read as follows: 7 4. It shall be an unlawful discriminatory practice for an education 8 corporation or association which holds itself out to the public to be 9 non-sectarian and exempt from taxation pursuant to the provisions of 10 article four of the real property tax law to deny the use of its facili- 11 ties to any person otherwise qualified, or to permit the harassment of 12 any student or applicant, by reason of his race, color, religion, disa- 13 bility, national origin, sexual orientation, GENDER IDENTITY OR 14 EXPRESSION, military status, sex, age or marital status, except that any 15 such institution which establishes or maintains a policy of educating 16 persons of one sex exclusively may admit students of only one sex. 17 S 11. Subdivision 5 of section 296 of the executive law, as amended by 18 chapter 106 of the laws of 2003, is amended to read as follows: 19 5. (a) It shall be an unlawful discriminatory practice for the owner, 20 lessee, sub-lessee, assignee, or managing agent of, or other person 21 having the right to sell, rent or lease a housing accommodation, 22 constructed or to be constructed, or any agent or employee thereof: 23 (1) To refuse to sell, rent, lease or otherwise to deny to or withhold 24 from any person or group of persons such a housing accommodation because 25 of the race, creed, color, national origin, sexual orientation, GENDER 26 IDENTITY OR EXPRESSION, military status, sex, age, disability, marital 27 status, or familial status of such person or persons, or to represent 28 that any housing accommodation or land is not available for inspection, 29 sale, rental or lease when in fact it is so available. 30 (2) To discriminate against any person because of race, creed, color, 31 national origin, sexual orientation, GENDER IDENTITY OR EXPRESSION, 32 military status, sex, age, disability, marital status, or familial 33 status in the terms, conditions or privileges of the sale, rental or 34 lease of any such housing accommodation or in the furnishing of facili- 35 ties or services in connection therewith. 36 (3) To print or circulate or cause to be printed or circulated any 37 statement, advertisement or publication, or to use any form of applica- 38 tion for the purchase, rental or lease of such housing accommodation or 39 to make any record or inquiry in connection with the prospective 40 purchase, rental or lease of such a housing accommodation which 41 expresses, directly or indirectly, any limitation, specification or 42 discrimination as to race, creed, color, national origin, sexual orien- 43 tation, GENDER IDENTITY OR EXPRESSION, military status, sex, age, disa- 44 bility, marital status, or familial status, or any intent to make any 45 such limitation, specification or discrimination. 46 The provisions of this paragraph (a) shall not apply (1) to the rental 47 of a housing accommodation in a building which contains housing accommo- 48 dations for not more than two families living independently of each 49 other, if the owner resides in one of such housing accommodations, (2) 50 to the restriction of the rental of all rooms in a housing accommodation 51 to individuals of the same sex or (3) to the rental of a room or rooms 52 in a housing accommodation, if such rental is by the occupant of the 53 housing accommodation or by the owner of the housing accommodation and 54 the owner resides in such housing accommodation or (4) solely with 55 respect to age and familial status to the restriction of the sale, 56 rental or lease of housing accommodations exclusively to persons sixty- S. 2406--A 7 A. 5710--A 1 two years of age or older and the spouse of any such person, or for 2 housing intended and operated for occupancy by at least one person 3 fifty-five years of age or older per unit. In determining whether hous- 4 ing is intended and operated for occupancy by persons fifty-five years 5 of age or older, Sec. 807(b) (2) (c) (42 U.S.C. 3607 (b) (2) (c)) of the 6 federal Fair Housing Act of 1988, as amended, shall apply. 7 (b) It shall be an unlawful discriminatory practice for the owner, 8 lessee, sub-lessee, or managing agent of, or other person having the 9 right of ownership or possession of or the right to sell, rent or lease, 10 land or commercial space: 11 (1) To refuse to sell, rent, lease or otherwise deny to or withhold 12 from any person or group of persons land or commercial space because of 13 the race, creed, color, national origin, sexual orientation, GENDER 14 IDENTITY OR EXPRESSION, military status, sex, age, disability, marital 15 status, or familial status of such person or persons, or to represent 16 that any housing accommodation or land is not available for inspection, 17 sale, rental or lease when in fact it is so available; 18 (2) To discriminate against any person because of race, creed, color, 19 national origin, sexual orientation, GENDER IDENTITY OR EXPRESSION, 20 military status, sex, age, disability, marital status, or familial 21 status in the terms, conditions or privileges of the sale, rental or 22 lease of any such land or commercial space; or in the furnishing of 23 facilities or services in connection therewith; 24 (3) To print or circulate or cause to be printed or circulated any 25 statement, advertisement or publication, or to use any form of applica- 26 tion for the purchase, rental or lease of such land or commercial space 27 or to make any record or inquiry in connection with the prospective 28 purchase, rental or lease of such land or commercial space which 29 expresses, directly or indirectly, any limitation, specification or 30 discrimination as to race, creed, color, national origin, sexual orien- 31 tation, GENDER IDENTITY OR EXPRESSION, military status, sex, age, disa- 32 bility, marital status, or familial status; or any intent to make any 33 such limitation, specification or discrimination. 34 (4) With respect to age and familial status, the provisions of this 35 paragraph shall not apply to the restriction of the sale, rental or 36 lease of land or commercial space exclusively to persons fifty-five 37 years of age or older and the spouse of any such person, or to the 38 restriction of the sale, rental or lease of land to be used for the 39 construction, or location of housing accommodations exclusively for 40 persons sixty-two years of age or older, or intended and operated for 41 occupancy by at least one person fifty-five years of age or older per 42 unit. In determining whether housing is intended and operated for occu- 43 pancy by persons fifty-five years of age or older, Sec. 807(b) (2) (c) 44 (42 U.S.C. 3607(b) (2) (c)) of the federal Fair Housing Act of 1988, as 45 amended, shall apply. 46 (c) It shall be an unlawful discriminatory practice for any real 47 estate broker, real estate salesperson or employee or agent thereof: 48 (1) To refuse to sell, rent or lease any housing accommodation, land 49 or commercial space to any person or group of persons or to refuse to 50 negotiate for the sale, rental or lease, of any housing accommodation, 51 land or commercial space to any person or group of persons because of 52 the race, creed, color, national origin, sexual orientation, GENDER 53 IDENTITY OR EXPRESSION, military status, sex, age, disability, marital 54 status, or familial status of such person or persons, or to represent 55 that any housing accommodation, land or commercial space is not avail- 56 able for inspection, sale, rental or lease when in fact it is so avail- S. 2406--A 8 A. 5710--A 1 able, or otherwise to deny or withhold any housing accommodation, land 2 or commercial space or any facilities of any housing accommodation, land 3 or commercial space from any person or group of persons because of the 4 race, creed, color, national origin, sexual orientation, GENDER IDENTITY 5 OR EXPRESSION, military status, sex, age, disability, marital status, or 6 familial status of such person or persons. 7 (2) To print or circulate or cause to be printed or circulated any 8 statement, advertisement or publication, or to use any form of applica- 9 tion for the purchase, rental or lease of any housing accommodation, 10 land or commercial space or to make any record or inquiry in connection 11 with the prospective purchase, rental or lease of any housing accommo- 12 dation, land or commercial space which expresses, directly or indirect- 13 ly, any limitation, specification, or discrimination as to race, creed, 14 color, national origin, sexual orientation, GENDER IDENTITY OR 15 EXPRESSION, military status, sex, age, disability, marital status, or 16 familial status; or any intent to make any such limitation, specifica- 17 tion or discrimination. 18 (3) With respect to age and familial status, the provisions of this 19 paragraph shall not apply to the restriction of the sale, rental or 20 lease of any HOUSING ACCOMMODATION, land or commercial space exclusively 21 to persons fifty-five years of age or older and the spouse of any such 22 person, or to the restriction of the sale, rental or lease of any hous- 23 ing accommodation or land to be used for the construction or location of 24 housing accommodations for persons sixty-two years of age or older, or 25 intended and operated for occupancy by at least one person fifty-five 26 years of age or older per unit. In determining whether housing is 27 intended and operated for occupancy by persons fifty-five years of age 28 or older, Sec. 807 (b) (2) (c) (42 U.S.C. 3607 (b) (2) (c)) of the 29 federal Fair Housing Act of 1988, as amended, shall apply. 30 (d) It shall be an unlawful discriminatory practice for any real 31 estate board, because of the race, creed, color, national origin, sexual 32 orientation, GENDER IDENTITY OR EXPRESSION, military status, age, sex, 33 disability, marital status, or familial status of any individual who is 34 otherwise qualified for membership, to exclude or expel such individual 35 from membership, or to discriminate against such individual in the 36 terms, conditions and privileges of membership in such board. 37 (e) It shall be an unlawful discriminatory practice for the owner, 38 proprietor or managing agent of, or other person having the right to 39 provide care and services in, a private proprietary nursing home, conva- 40 lescent home, or home for adults, or an intermediate care facility, as 41 defined in section two of the social services law, heretofore 42 constructed, or to be constructed, or any agent or employee thereof, to 43 refuse to provide services and care in such home or facility to any 44 individual or to discriminate against any individual in the terms, 45 conditions, and privileges of such services and care solely because such 46 individual is a blind person. For purposes of this paragraph, a "blind 47 person" shall mean a person who is registered as a blind person with the 48 commission for the visually handicapped and who meets the definition of 49 a "blind person" pursuant to section three of chapter four hundred 50 fifteen of the laws of nineteen hundred thirteen entitled "An act to 51 establish a state commission for improving the condition of the blind of 52 the state of New York, and making an appropriation therefor". 53 (f) The provisions of this subdivision, as they relate to age, shall 54 not apply to persons under the age of eighteen years. 55 (g) It shall be an unlawful discriminatory practice for any person 56 offering or providing housing accommodations, land or commercial space S. 2406--A 9 A. 5710--A 1 as described in paragraphs (a), (b), and (c) of this subdivision to make 2 or cause to be made any written or oral inquiry or record concerning 3 membership of any person in the state organized militia in relation to 4 the purchase, rental or lease of such housing accommodation, land, or 5 commercial space, provided, however, that nothing in this subdivision 6 shall prohibit a member of the state organized militia from voluntarily 7 disclosing such membership. 8 S 12. Paragraph (a) of subdivision 9 of section 296 of the executive 9 law, as amended by chapter 106 of the laws of 2003, is amended to read 10 as follows: 11 (a) It shall be an unlawful discriminatory practice for any fire 12 department or fire company therein, through any member or members there- 13 of, officers, board of fire commissioners or other body or office having 14 power of appointment of volunteer firefighters, directly or indirectly, 15 by ritualistic practice, constitutional or by-law prescription, by tacit 16 agreement among its members, or otherwise, to deny to any individual 17 membership in any volunteer fire department or fire company therein, or 18 to expel or discriminate against any volunteer member of a fire depart- 19 ment or fire company therein, because of the race, creed, color, 20 national origin, sexual orientation, GENDER IDENTITY OR EXPRESSION, 21 military status, sex or marital status of such individual. 22 S 13. Subdivision 13 of section 296 of the executive law, as amended 23 by chapter 106 of the laws of 2003, is amended to read as follows: 24 13. It shall be an unlawful discriminatory practice (i) for any person 25 to discriminate against, boycott or blacklist, or to refuse to buy from, 26 sell to or trade with, any person, because of the race, creed, color, 27 national origin, sexual orientation, GENDER IDENTITY OR EXPRESSION, 28 military status or sex of such person, or of such person's partners, 29 members, stockholders, directors, officers, managers, superintendents, 30 agents, employees, business associates, suppliers or customers, or (ii) 31 for any person wilfully to do any act or refrain from doing any act 32 which enables any such person to take such action. This subdivision 33 shall not apply to: 34 (a) Boycotts connected with labor disputes; or 35 (b) Boycotts to protest unlawful discriminatory practices. 36 S 14. Subdivisions 1, 2 and 3 of section 296-a of the executive law, 37 as amended by chapter 106 of the laws of 2003, are amended to read as 38 follows: 39 1. It shall be an unlawful discriminatory practice for any creditor or 40 any officer, agent or employee thereof: 41 a. In the case of applications for credit with respect to the 42 purchase, acquisition, construction, rehabilitation, repair or mainte- 43 nance of any housing accommodation, land or commercial space to discrim- 44 inate against any such applicant because of the race, creed, color, 45 national origin, sexual orientation, GENDER IDENTITY OR EXPRESSION, 46 military status, age, sex, marital status, disability, or familial 47 status of such applicant or applicants or any member, stockholder, 48 director, officer or employee of such applicant or applicants, or of the 49 prospective occupants or tenants of such housing accommodation, land or 50 commercial space, in the granting, withholding, extending or renewing, 51 or in the fixing of the rates, terms or conditions of, any such credit; 52 b. To discriminate in the granting, withholding, extending or renew- 53 ing, or in the fixing of the rates, terms or conditions of, any form of 54 credit, on the basis of race, creed, color, national origin, sexual 55 orientation, GENDER IDENTITY OR EXPRESSION, military status, age, sex, 56 marital status, disability, or familial status; S. 2406--A 10 A. 5710--A 1 c. To use any form of application for credit or use or make any record 2 or inquiry which expresses, directly or indirectly, any limitation, 3 specification, or discrimination as to race, creed, color, national 4 origin, sexual orientation, GENDER IDENTITY OR EXPRESSION, military 5 status, age, sex, marital status, disability, or familial status; 6 d. To make any inquiry of an applicant concerning his or her capacity 7 to reproduce, or his or her use or advocacy of any form of birth control 8 or family planning; 9 e. To refuse to consider sources of an applicant's income or to 10 subject an applicant's income to discounting, in whole or in part, 11 because of an applicant's race, creed, color, national origin, sexual 12 orientation, GENDER IDENTITY OR EXPRESSION, military status, age, sex, 13 marital status, childbearing potential, disability, or familial status; 14 f. To discriminate against a married person because such person 15 neither uses nor is known by the surname of his or her spouse. 16 This paragraph shall not apply to any situation where the use of a 17 surname would constitute or result in a criminal act. 18 2. Without limiting the generality of subdivision one of this section, 19 it shall be considered discriminatory if, because of an applicant's or 20 class of applicants' race, creed, color, national origin, sexual orien- 21 tation, GENDER IDENTITY OR EXPRESSION, military status, age, sex, mari- 22 tal status or disability, or familial status, (i) an applicant or class 23 of applicants is denied credit in circumstances where other applicants 24 of like overall credit worthiness are granted credit, or (ii) special 25 requirements or conditions, such as requiring co-obligors or reapplica- 26 tion upon marriage, are imposed upon an applicant or class of applicants 27 in circumstances where similar requirements or conditions are not 28 imposed upon other applicants of like overall credit worthiness. 29 3. It shall not be considered discriminatory if credit differen- 30 tiations or decisions are based upon factually supportable, objective 31 differences in applicants' overall credit worthiness, which may include 32 reference to such factors as current income, assets and prior credit 33 history of such applicants, as well as reference to any other relevant 34 factually supportable data; provided, however, that no creditor shall 35 consider, in evaluating the credit worthiness of an applicant, aggregate 36 statistics or assumptions relating to race, creed, color, national 37 origin, sexual orientation, GENDER IDENTITY OR EXPRESSION, military 38 status, sex, marital status or disability, or to the likelihood of any 39 group of persons bearing or rearing children, or for that reason receiv- 40 ing diminished or interrupted income in the future. 41 S 15. Section 40-c of the civil rights law, as amended by chapter 2 of 42 the laws of 2002, is amended to read as follows: 43 S 40-c. Discrimination. 1. All persons within the jurisdiction of this 44 state shall be entitled to the equal protection of the laws of this 45 state or any subdivision thereof. 46 2. No person shall, because of race, creed, color, national origin, 47 sex, marital status, sexual orientation, GENDER IDENTITY OR EXPRESSION, 48 or disability, as such term is defined in section two hundred ninety-two 49 of the executive law, be subjected to any discrimination in his or her 50 civil rights, or to any harassment, as defined in section 240.25 of the 51 penal law, in the exercise thereof, by any other person or by any firm, 52 corporation or institution, or by the state or any agency or subdivision 53 of the state. 54 S 16. Paragraph (a) of subdivision 1 of section 313 of the education 55 law, as amended by chapter 2 of the laws of 2002, is amended to read as 56 follows: S. 2406--A 11 A. 5710--A 1 (a) It is hereby declared to be the policy of the state that the Amer- 2 ican ideal of equality of opportunity requires that students, otherwise 3 qualified, be admitted to educational institutions and be given access 4 to all the educational programs and courses operated or provided by such 5 institutions without regard to race, color, sex, religion, creed, mari- 6 tal status, age, sexual orientation as defined in section two hundred 7 ninety-two of the executive law, GENDER IDENTITY OR EXPRESSION AS 8 DEFINED IN SECTION TWO HUNDRED NINETY-TWO OF THE EXECUTIVE LAW, or 9 national origin, except that, with regard to religious or denominational 10 educational institutions, students, otherwise qualified, shall have the 11 equal opportunity to attend therein without discrimination because of 12 race, color, sex, marital status, age, sexual orientation as defined in 13 section two hundred ninety-two of the executive law, GENDER IDENTITY OR 14 EXPRESSION AS DEFINED IN SECTION TWO HUNDRED NINETY-TWO OF THE EXECUTIVE 15 LAW, or national origin. It is a fundamental American right for members 16 of various religious faiths to establish and maintain educational insti- 17 tutions exclusively or primarily for students of their own religious 18 faith or to effectuate the religious principles in furtherance of which 19 they are maintained. Nothing herein contained shall impair or abridge 20 that right. 21 S 17. Subdivision 3 of section 313 of the education law, as amended by 22 chapter 2 of the laws of 2002, is amended to read as follows: 23 (3) Unfair educational practices. It shall be an unfair educational 24 practice for an educational institution after September fifteenth, nine- 25 teen hundred forty-eight: 26 (a) To exclude or limit or otherwise discriminate against any person 27 or persons seeking admission as students to such institution or to any 28 educational program or course operated or provided by such institution 29 because of race, religion, creed, sex, color, marital status, age, sexu- 30 al orientation as defined in section two hundred ninety-two of the exec- 31 utive law, GENDER IDENTITY OR EXPRESSION AS DEFINED IN SECTION TWO 32 HUNDRED NINETY-TWO OF THE EXECUTIVE LAW, or national origin; except that 33 nothing in this section shall be deemed to affect, in any way, the right 34 of a religious or denominational educational institution to select its 35 students exclusively or primarily from members of such religion or 36 denomination or from giving preference in such selection to such members 37 or to make such selection of its students as is calculated by such 38 institution to promote the religious principles for which it is estab- 39 lished or maintained. Nothing herein contained shall impair or abridge 40 the right of an independent institution, which establishes or maintains 41 a policy of educating persons of one sex exclusively, to admit students 42 of only one sex. 43 (b) To penalize any individual because he or she has initiated, testi- 44 fied, participated or assisted in any proceedings under this section. 45 (c) To accept any endowment or gift of money or property conditioned 46 upon teaching the doctrine of supremacy of any particular race. 47 (d) With respect to any individual who withdraws from attendance to 48 serve on active duty in the armed forces of the United States in time of 49 war, including any individual who withdrew from attendance on or after 50 August second, nineteen hundred ninety to serve on active duty in the 51 armed forces of the United States in the Persian Gulf conflict: (i) to 52 deny or limit the readmission of such individual to such institution or 53 to any educational program or course operated or provided by such insti- 54 tution because of such withdrawal from attendance or because of the 55 failure to complete any educational program or course due to such with- 56 drawal; (ii) to impose any academic penalty on such person because of S. 2406--A 12 A. 5710--A 1 such withdrawal or because of the failure to complete any educational 2 program or course due to such withdrawal; (iii) to reduce or eliminate 3 any financial aid award granted to such individual which could not be 4 used, in whole or part, because of such withdrawal or because of the 5 failure to complete any educational program or course due to such with- 6 drawal; or (iv) to fail to provide a credit or refund of tuition and 7 fees paid by such individual for any semester, term or quarter not 8 completed because of such withdrawal or because of the failure to 9 complete any program or course due to such withdrawal. 10 (e) It shall not be an unfair educational practice for any educational 11 institution to use criteria other than race, religion, creed, sex, 12 color, marital status, age, sexual orientation as defined in section two 13 hundred ninety-two of the executive law, GENDER IDENTITY OR EXPRESSION 14 AS DEFINED IN SECTION TWO HUNDRED NINETY-TWO OF THE EXECUTIVE LAW, or 15 national origin in the admission of students to such institution or to 16 any of the educational programs and courses operated or provided by such 17 institution. 18 S 18. Section 485.00 of the penal law, as added by chapter 107 of the 19 laws of 2000, is amended to read as follows: 20 S 485.00 Legislative findings. 21 The legislature finds and determines as follows: criminal acts involv- 22 ing violence, intimidation and destruction of property based upon bias 23 and prejudice have become more prevalent in New York state in recent 24 years. The intolerable truth is that in these crimes, commonly and 25 justly referred to as "hate crimes", victims are intentionally selected, 26 in whole or in part, because of their race, color, national origin, 27 ancestry, gender, GENDER IDENTITY OR EXPRESSION, religion, religious 28 practice, age, disability or sexual orientation. Hate crimes do more 29 than threaten the safety and welfare of all citizens. They inflict on 30 victims incalculable physical and emotional damage and tear at the very 31 fabric of free society. Crimes motivated by invidious hatred toward 32 particular groups not only harm individual victims but send a powerful 33 message of intolerance and discrimination to all members of the group to 34 which the victim belongs. Hate crimes can and do intimidate and disrupt 35 entire communities and vitiate the civility that is essential to healthy 36 democratic processes. In a democratic society, citizens cannot be 37 required to approve of the beliefs and practices of others, but must 38 never commit criminal acts on account of them. Current law does not 39 adequately recognize the harm to public order and individual safety that 40 hate crimes cause. Therefore, our laws must be strengthened to provide 41 clear recognition of the gravity of hate crimes and the compelling 42 importance of preventing their recurrence. 43 Accordingly, the legislature finds and declares that hate crimes 44 should be prosecuted and punished with appropriate severity. 45 S 19. Subdivisions 1, 2 and 4 of section 485.05 of the penal law, as 46 added by chapter 107 of the laws of 2000, are amended to read as 47 follows: 48 1. A person commits a hate crime when he or she commits a specified 49 offense and either: 50 (a) intentionally selects the person against whom the offense is 51 committed or intended to be committed in whole or in substantial part 52 because of a belief or perception regarding the race, color, national 53 origin, ancestry, gender, GENDER IDENTITY OR EXPRESSION, religion, reli- 54 gious practice, age, disability or sexual orientation of a person, 55 regardless of whether the belief or perception is correct, or S. 2406--A 13 A. 5710--A 1 (b) intentionally commits the act or acts constituting the offense in 2 whole or in substantial part because of a belief or perception regarding 3 the race, color, national origin, ancestry, gender, GENDER IDENTITY OR 4 EXPRESSION, religion, religious practice, age, disability or sexual 5 orientation of a person, regardless of whether the belief or perception 6 is correct. 7 2. Proof of race, color, national origin, ancestry, gender, GENDER 8 IDENTITY OR EXPRESSION, religion, religious practice, age, disability or 9 sexual orientation of the defendant, the victim or of both the defendant 10 and the victim does not, by itself, constitute legally sufficient 11 evidence satisfying the people's burden under paragraph (a) or (b) of 12 subdivision one of this section. 13 4. For purposes of this section: 14 (a) the term "age" means sixty years old or more; 15 (b) the term "disability" means a physical or mental impairment that 16 substantially limits a major life activity[.]; 17 (C) THE TERM "GENDER IDENTITY OR EXPRESSION" MEANS HAVING OR BEING 18 PERCEIVED AS HAVING A GENDER IDENTITY, SELF-IMAGE, APPEARANCE, BEHAVIOR 19 OR EXPRESSION WHETHER OR NOT THAT GENDER IDENTITY, SELF-IMAGE, APPEAR- 20 ANCE, BEHAVIOR OR EXPRESSION IS DIFFERENT FROM THAT TRADITIONALLY ASSO- 21 CIATED WITH THE SEX ASSIGNED TO THAT PERSON AT BIRTH. 22 S 20. Subdivision 3 of section 240.30 of the penal law, as amended by 23 chapter 510 of the laws of 2008, is amended to read as follows: 24 3. Strikes, shoves, kicks, or otherwise subjects another person to 25 physical contact, or attempts or threatens to do the same because of a 26 belief or perception regarding such person's race, color, national 27 origin, ancestry, gender, GENDER IDENTITY OR EXPRESSION, religion, reli- 28 gious practice, age, disability or sexual orientation, regardless of 29 whether the belief or perception is correct; or 30 S 21. The opening paragraph of section 240.31 of the penal law, as 31 amended by chapter 49 of the laws of 2006, is amended to read as 32 follows: 33 A person is guilty of aggravated harassment in the first degree when 34 with intent to harass, annoy, threaten or alarm another person, because 35 of a belief or perception regarding such person's race, color, national 36 origin, ancestry, gender, GENDER IDENTITY OR EXPRESSION, religion, reli- 37 gious practice, age, disability or sexual orientation, regardless of 38 whether the belief or perception is correct, he or she: 39 S 22. Section 240.00 of the penal law is amended by adding a new 40 subdivision 7 to read as follows: 41 7. "GENDER IDENTITY OR EXPRESSION" MEANS HAVING OR BEING PERCEIVED AS 42 HAVING A GENDER IDENTITY, SELF-IMAGE, APPEARANCE, BEHAVIOR OR EXPRESSION 43 WHETHER OR NOT THAT GENDER IDENTITY, SELF-IMAGE, APPEARANCE, BEHAVIOR OR 44 EXPRESSION IS DIFFERENT FROM THAT TRADITIONALLY ASSOCIATED WITH THE SEX 45 ASSIGNED TO THAT PERSON AT BIRTH. 46 S 23. Paragraph (c) of subdivision 7 of section 200.50 of the criminal 47 procedure law, as amended by chapter 7 of the laws of 2007, is amended 48 to read as follows: 49 (c) in the case of any hate crime, as defined in section 485.05 of the 50 penal law, specifies, as applicable, that the defendant or defendants 51 intentionally selected the person against whom the offense was committed 52 or intended to be committed; or intentionally committed the act or acts 53 constituting the offense, in whole or in substantial part because of a 54 belief or perception regarding the race, color, national origin, ances- 55 try, gender, GENDER IDENTITY OR EXPRESSION, religion, religious prac- 56 tice, age, disability or sexual orientation of a person; and S. 2406--A 14 A. 5710--A 1 S 24. This act shall take effect on the thirtieth day after it shall 2 have become a law; provided, however, that sections eighteen through 3 twenty-three of this act shall take effect on the first of November next 4 succeeding the date on which it shall have become a law.