Photo via Transgender Legal Defense and Education Fund
Bryan Ellicott visited a public pool in Staten Island last July to get some relief from a typically searing New York City summer heat wave. A native Staten Islander and the son of a 9/11 first responder who died from injuries sustained in the World Trade Center rescue, Ellicott had been going to the same pool his entire life. But that day was different: it was the first time he’d visited the pool since beginning a gender transition from female to male.
He had already deposited his belongings in the men’s locker room and taken a dip in the pool when he returned to his locker to change his T-shirt, under which he was wearing a chest binder. A staff member followed Ellicott inside and told him to use the women’s locker room or leave the pool. Ellicott asked to speak to a supervisor, and two more staff members eventually came in and said that he couldn’t use the men’s room. Ellicott felt harassed and humiliated, and left.On Monday, lawyers for Ellicott, who is 24 years old, filed suit against the New York City Department of Parks and Recreation at the state Supreme Court in downtown Manhattan. Michael Silverman of the Transgender Legal Defense and Education Fund (TLDEF) and representatives from the law firm Cleary Gottlieb Steen and Hamilton are asking the court to rule that discrimination against transgender people for using bathrooms designated for their identified gender violates the city’s human rights law.An intermediate appellate court ruled in 2005 that forcing transgender clients and tenants to use the bathrooms assigned to their biological gender did not violate New York’s sex discrimination laws. If the New York Supreme Court rules in Ellicott’s favor, it would be the first such decision in the state under human rights law.The suit alleges seven counts of violating the city’s human rights law, on the basis of both gender identity and disability. Gender dysphoria, which most transgender people have to be diagnosed with in order to medically and legally change gender, is classified as a “serious medical condition” by the American Medical Association. The lawsuit also describes gender dysphoria as “a recognized mental or psychological impairment.”
The Department of Parks and Recreation did not directly respond to requests for comment, but Nick Paolucci with the city’s legal department offered that it “will review the lawsuit when we are served.”“What happened to Bryan happens to transgender people day in and day out,” Silverman told VICE News outside of the courthouse. “In Bryan’s case, simply going for a swim became an ordeal. We want to make sure what happens to Bryan doesn’t happen to anyone else.”This wasn’t the first time Ellicott was harassed in a bathroom owing to his gender identity. He was assaulted in 2012 while using a public bathroom in Manhattan’s Union Square, resulting in injuries that were treated at nearby Beth Israel Medical Center.“I avoid using bathrooms,” Ellicott told VICE News. “I can go eight or 12 hours a day without using a bathroom. If I have to go, I’ll buddy up with one of my guy friends, or one of my girlfriends will text me while I’m in there to make sure I’m okay.”Ellicott pulled a laminated card out of his pocket that he received from the NYC Anti-Violence Project, a group that works to end hate attacks on LGBT people in the city. The card, which he didn’t have at the time of the July incident, informs carriers of their rights regarding bathroom usage. Its very existence reflects the extent of the problem.“Know your NYC restroom rights,” the card reads. “The NYC Commission on Human Rights says that these acts may be gender identity discrimination: Stopping you from using a restroom or other sex-segregated facility that matches your gender identity and gender expression (or) asking you to provide ID to prove your gender in order to use a restroom or other sex-segregated facility. These rules are not well known. Show this card if you have problems using a restroom or other sex-segregated facility.”
In 2003, a transgender woman named Pauline Park helped to formulate the New York City Human Rights Commission’s first guidelines for gender identity discrimination, which provided the basis for the Anti-Violence Project card. Two years later, she received a settlement from Advantage Security after she was harassed for using the women’s bathroom at a mall. Park had successfully filed a complaint with the Human Rights Commission.But bizarrely, the commission refused to accept a complaint that Ellicott tried to file after the Staten Island incident. Silverman said that this indicated that the commission was not clear on where it stood when it came to gender identity discrimination.The Human Rights Commission did not respond to a VICE News request for comment about Ellicott’s rejected claim. An explanation of the commission’s complaint system online did not clarify why the claim was rejected.Gender is one of many protected classes under the city’s human rights law, which defines gender as “actual or perceived sex” that also includes “a person’s gender identity, self-image, appearance, behavior or expression, whether or not that gender identity, self-image, appearance, behavior or expression is different from that traditionally associated with the legal sex assigned to that person at birth.”Ellicott’s New York driver’s license identifies him as male.“New York is one of the most diverse cities in the nation, and yet we receive a record number of complaints from transgender people who say they were discriminated against here,” Silverman said.In 2008, TLDEF published an extensive guide to transgender legal rights under the city’s human rights law. The guide makes clear that the law protects against discrimination in “public accommodations,” which means everything from a restaurant to a bathroom in a public park.It’s ironic that a transgender person had to file a landmark discrimination lawsuit right after actress Laverne Cox became the first transgender person to grace the cover of TIME magazine, which claimed that American society is at “the transgender tipping point.”“If people have to keep bringing up stuff like this, then we aren’t 100 percent there yet,” Ellicott said.Follow Mary Emily O’Hara on Twitter: @maryemilyohara