Legalization of Gestational Surrogacy Would Allow Same-Sex Couples and Couples Struggling with Infertility to Conceive a Child Through Assisted Reproduction
Ban on Gay and Trans Panic Legal Defense Would Prohibit People Accused of Violent Crimes from Using Homophobia and Transphobia as a Viable Defense Strategy in Court
Both Proposals Were Advanced as Part of Governor's Executive Budget
See New Campaign Website Here
Governor Andrew M. Cuomo today launched a campaign to legalize gestational surrogacy and ban the gay and trans panic defense before the end of session on June 19. Both bills were proposed in the Governor's FY 2020 Executive Budget but were not adopted by the legislature, leaving them to be considered outside of the budget during the remainder of the legislative session. A new website dedicated to the campaign can be viewed here.
"These are two of the most repulsive issues that we have to correct. The first issue is on the gay and trans panic defense. Under our current law, someone can raise in a criminal case that when they found out the person was gay or trans they were so disturbed emotionally that they were not fully responsible for their actions. It is the institutionalization and the codification of homophobia and transphobia, and it is disgusting that it is still on the books," Governor Cuomo said. "The second existing law that has to be repealed is the prohibition on surrogacy. Right now if a gay couple or infertile couple wants to have a child, in 47 states you can contract with a woman for gestational birth - but not in New York. Before the end of the legislative session, we need to fix these two violations that are repugnant to what we believe and who we are and an injustice to the LGBTQ community."
"New York is the birthplace of the LGBTQ rights movement, and we're leading the way in our efforts for equal rights and protections for all," said Lieutenant Governor Kathy Hochul. "With GENDA and legislation banning conversion therapy now state law, we're taking steps to ensure justice and equality - but we're not finished yet. Legislation legalizing gestational surrogacy and eliminating the 'gay and trans panic' defense will further our efforts to make sure LGBTQ individuals can grow their families and that they're protected from acts of hatred and violence."
Legalizing Gestational Surrogacy
Gestational surrogacy provides same-sex couples and couples struggling with fertility the ability to conceive a child with the help of medical advances in assisted reproduction. Current state laws not only ban gestational surrogacy, but also fail to clearly define who the legal parents are when a child is conceived via reproductive technology. To broaden the inclusivity of New York's reproductive health laws, the Governor proposed legislation in the FY 2020 Executive Budget to lift the ban on surrogacy contracts that would also ensure protections for all parties involved.
Banning the Gay and Trans Panic Defense
Current gay and trans panic defenses allow those responsible for violent crimes against LGBTQ people to receive a lesser sentence, and in some cases, even avoid being convicted, by placing the blame on a victim's actual or perceived sexual orientation or gender identity. The passage of this bill would close a loophole in state law that currently allows individuals to use the gay and trans panic defenses after attacking another based upon a perception, or discovery of, that victim's gender, gender identity, or sexual orientation.
These are two of the most repulsive issues that we have to correct.
Beverly Tillery, Executive Director, the New York City Anti-Violence Project said, "Under Governor Cuomo's leadership, New York has been at the forefront of the fight for ensuring legal protections for LGBTQ people across the state. Yet with all the progress we have made, there is still so much to be done. Today, I stand with the Governor as he fights to legalize gestational surrogacy and prohibit the gay and trans panic legal defense once and for all. When individuals claim a gay or trans panic defense, they are justifying their hate violence by blaming the victim, simply because of who they are. We cannot tolerate these homophobic and transphobic defenses to be used in our courts. These bills will change the lives of New Yorkers across the state, but with inaction from the legislature, the deplorable gay and trans panic defense will remain on the books, and same-sex couples exploring gestational surrogacy will be disappointed yet again. In order for our state to continue to be a national leader in advancing justice for all regardless of their sexual orientation or gender identity, we must take this step."
Kristen Prata Browde, Board President, LGBT Bar Association of Greater New York and co-Chair Board of Directors, National Trans Bar Association said, "Despite hostility from Washington, here in New York this year we have made enormous strides in the fight for equality. But even in our state, laws still exist that actually promote discrimination, which hold us back. The ban on gestational surrogacy prevents a viable option for couples of all orientations to conceive a child, dashing dreams and placing further burden on these loving and hopeful couples. All New Yorkers should be able to, indeed, should be encouraged to have a family. With legal surrogacy, we can help them achieve that goal. Even more disturbing is the gay and trans panic defense strategy still being used in New York's courts today. There is no excuse for individuals who attack others on the basis of their sexual orientation or gender identity, a defendant's convictions should be based solely on the nature of their crime. The organizations I head, the LGBT Bar Association of Greater New York and the National Trans Bar Association, and I, as a proud, out, transgender New Yorker, am immensely grateful to Governor Cuomo for his fierce advocacy to get these bills passed and further advance the rights of LGBTQ individuals across the Empire State."
The Rev. Stan J. Sloan, Chief Executive Officer, Family Equality Council said, "I proudly join Governor Cuomo in his fight to bring greater equality to the entire LGBTQ community. The passage of both of these bills is imperative to advancing the rights of a community that has long faced intolerance and discrimination in forming their families and in the criminal justice system. By expanding the family building options of same-sex couples and by striking the gay and trans panic defense from the law books once and for all, these bills will take yet another step toward bringing equality to LGBTQ individuals throughout New York. I urge the legislature to take action on these critically important bills before the fast approaching end of session."
The Van Degna Family said, "So many couples in New York have struggled to start a family of their own, and I can tell you first hand the emotional toll it takes to learn that your options are so limited. New York has always been a leader in LGBTQ and women's rights, and it's unconscionable that surrogacy is still banned in New York and that an infertile couple or an LGBTQ couple can't take advantage of these medical advances to start a family. Imagine the amount of love pouring through our state as intended parents and surrogates can be closer together for this incredible journey. It's time for New York to step up and make surrogacy legal once and for all, and I thank Governor Cuomo for his leadership in this fight."
Richard Burns, Interim CEO, Lambda Legal said, "Legalizing gestational surrogacy and eliminating the Gay and Trans Panic legal defense in New York are some of the next steps in bringing full equality to the LGBTQ community. It is vital that LGBTQ people in New York be able to form loving families and be free from the vicious cycle of violence against our communities perpetuated by the "gay panic" and "trans panic" so-called defenses. The legislature must act before the end of session on these issues, or risk New York failing to live up to its reputation as the leading state in LGBTQ equality. Lambda Legal commends the Governor for his powerful advocacy on these issues."
Delores Nettles, Mother of Islan Nettles, who was killed in 2013 and whose attacker used the trans panic defense, said, "The gay and trans panic defense is a disgusting excuse for bigoted individuals to get away with despicable crimes, and it has no place in the State of New York. Any parent who loses a child to a hate crime should not have to fear that their child's assailant could receive a lesser sentence or even walk free because of this biased loophole. I am grateful that Governor Cuomo is spearheading the effort to ban these defenses and for his commitment to making New York a safer, more just place for the LGBTQ community."
Brian Romero, Policy Fellow at GMHC said, "Gay Men's Health Crisis (GMHC) was founded, in part, to bring visibility to HIV/AIDS-affected and LGBTQ communities. Today, New York State Governor Andrew Cuomo continues his leadership by calling for the repeal of draconian surrogacy laws and the so-called gay and trans panic defense. All New Yorkers should have the ability to formulate a family. Without the right to gestational surrogacy, same-sex couples and couples dealing with infertility have no recourse in our state to conceive a child. In addition, no one should think they can murder LGBTQ New Yorkers, particularly trans women of color because the law will allow them to do so. As we celebrate the upcoming anniversary of the Stonewall rebellion, we join the Governor in calling on the legislature to (not leave Albany until they) pass this legislation."
Barbara Joy Beatus, who needs a surrogate due to a medical condition, said, "Governor Cuomo has long been a champion for those whose voices have been silenced, those who have been discriminated against, and those whose rights have not been made equal. Today, I join the Governor in doubling down and demanding action on these two critical pieces of legislation. We will not stand for inequality in this state, and the passage of these bills will signify yet another step forward toward greater equality for all New Yorkers."
Cathryn Oakley, state legislative director and senior counsel at the Human Rights Campaign said, “It's encouraging to see Gov. Cuomo stand up against these so-called LGBTQ 'panic defenses' in New York. Perpetrators of violent crimes should never be able to assert a victim’s LGBTQ identity as a defense for their violent actions in a court of law. These 'defenses' send the destructive message that LGBTQ victims are less worthy of justice and their attackers justified in their violence. Every victim of violent crime and their families deserve equal justice, regardless of their sexual orientation or gender identity. We hope New York's legislature will agree with the governor and pass legislation to prevent this defense from being used in New York courtrooms ever again."
Throughout his administration, Governor Cuomo has been a champion of LGBTQ rights, most notably passing the Marriage Equality Act in 2011. Earlier this year, the Governor signed the Gender Expression Non-Discrimination Act, prohibiting employers, educational institutions, landlords, creditors, and others from discriminating against individuals on the basis of gender identity or expression, and making offenses committed on the basis of gender identity or expression hate crimes under New York State law. The Governor also signed legislation banning the practice of conversion therapy by expanding the definition of professional misconduct for professions licensed under the education law to include engaging in conversion therapy with a patient under the age of eighteen years.
Most recently, in anticipation of the potential rollback of critical Affordable Care Act provisions, Governor Cuomo directed the Department of Health to issue regulations prohibiting health care providers from discriminating against transgender patients, and directed the Department of Financial Services to issue regulations expanding anti-discrimination protections for transgender individuals when accessing health insurance. These directives were in direct response to the Trump administration's proposal to repeal a federal regulation that clarifies that the Affordable Care Act's non-discrimination protections based on sex include protections based on gender identity. By removing these protections, approximately 90,300 transgender New Yorkers would be exposed to unfair, blatant and unlawful discrimination.
In direct response to the federal government's rollbacks on federal protections for transgender students in 2017, the Governor directed the State Education Department to issue a directive to school districts reinforcing the protections from discrimination and harassment afforded to transgender students under New York State law.