The New York State Senate

                    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

  Section 1. Legislative findings and intent. The legislature  reaffirms
that  the state has the responsibility to act to assure that every indi-
vidual within this state is afforded an equal  opportunity  to  enjoy  a
full  and  productive  life,  and that the failure to provide such equal
opportunity,  whether  because of discrimination, prejudice, intolerance
or inadequate education, training,  housing  or  health  care  not  only
threatens  the  rights  and  proper  privileges  of its inhabitants, but
menaces the institutions and foundation of a free democratic  state  and
threatens  the  peace,  order, health, safety and general welfare of the
state and its inhabitants.
  The legislature further finds that many residents of this  state  have
encountered prejudice on account of their gender identity or expression,
and  that  this  prejudice  has  severely  limited or actually prevented
access to employment, housing and other basic necessities of life, lead-
ing to deprivation and suffering.  The  legislature  further  recognizes
that  this  prejudice  has  fostered  a general climate of hostility and
distrust, leading in some instances to physical violence  against  those
perceived  to live in a gender identity or expression which is different
from that traditionally associated with the sex assigned to that  person
at birth.
  In so doing, the legislature makes clear its action is not intended to
promote any particular attitude, course of conduct or way of life. Rath-
er its purpose is to ensure that individuals who live in our free socie-
ty have the capacity to make their own choices, follow their own beliefs
and  conduct  their  own lives as they see fit, consistent with existing
law.
  The legislature further finds that, as court decisions  have  properly
held,  New  York's sex discrimination laws prohibit discrimination based
on gender stereotypes or  because  an  individual  has  transitioned  or
intends  to  transition  from one gender to another. This legislation is
intended to codify this principle and to ensure that the  public  under-
stands   that  discrimination  on  the  basis  of  gender  identity  and
expression is prohibited.
  S 2. Subdivisions 1 and 2 of section 291  of  the  executive  law,  as
amended  by  chapter  106  of  the  laws of 2003, are amended to read as
follows:
  1. The opportunity to obtain employment without discrimination because
of age, race, creed, color, national origin, sexual orientation,  GENDER
IDENTITY OR EXPRESSION, military status, sex or marital status is hereby
recognized as and declared to be a civil right.
  2.  The  opportunity  to obtain education, the use of places of public
accommodation and the ownership, use and occupancy of  housing  accommo-
dations  and  commercial  space  without  discrimination because of age,
race, creed, color, national origin, sexual orientation, GENDER IDENTITY
OR EXPRESSION, military status, sex or marital status, as  specified  in
section  two hundred ninety-six of this article, is hereby recognized as
and declared to be a civil right.
  S 3. Section 292 of the executive law  is  amended  by  adding  a  new
subdivision 35 to read as follows:
  35.  THE  TERM  "GENDER  IDENTITY OR EXPRESSION" MEANS HAVING OR BEING
PERCEIVED AS HAVING A GENDER IDENTITY, SELF-IMAGE, APPEARANCE,  BEHAVIOR
OR  EXPRESSION  WHETHER OR NOT THAT GENDER IDENTITY, SELF-IMAGE, APPEAR-
ANCE, BEHAVIOR OR EXPRESSION IS DIFFERENT FROM THAT TRADITIONALLY  ASSO-
CIATED WITH THE SEX ASSIGNED TO THAT PERSON AT BIRTH.

S. 2406--A                          3                         A. 5710--A

  S  4.  Subdivisions  8  and  9 of section 295 of the executive law, as
amended by chapter 106 of the laws of  2003,  are  amended  to  read  as
follows:
  8. To create such advisory councils, local, regional or state-wide, as
in  its  judgment  will aid in effectuating the purposes of this article
and of section eleven of article one of the constitution of this  state,
and  the  division  may  empower them to study the problems of discrimi-
nation in all or specific fields of human relationships or  in  specific
instances of discrimination because of age, race, creed, color, national
origin,  sexual  orientation,  GENDER  IDENTITY  OR EXPRESSION, military
status, sex, disability or marital status and  make  recommendations  to
the  division  for the development of policies and procedures in general
and in specific instances. The advisory councils also shall  disseminate
information  about  the division's activities to organizations and indi-
viduals in their localities. Such advisory councils shall be composed of
representative citizens, serving without pay, but with reimbursement for
actual and necessary traveling  expenses;  and  the  division  may  make
provision for technical and clerical assistance to such councils and for
the expenses of such assistance.
  9. To develop human rights plans and policies for the state and assist
in their execution and to make investigations and studies appropriate to
effectuate  this article and to issue such publications and such results
of investigations and research as in its judgement will tend  to  inform
persons  of the rights assured and remedies provided under this article,
to promote good-will and minimize or eliminate discrimination because of
age, race, creed, color, national  origin,  sexual  orientation,  GENDER
IDENTITY  OR  EXPRESSION,  military  status,  sex, disability or marital
status.
  S 5. Paragraphs (a), (b), (c) and (d) of subdivision 1 of section  296
of the executive law, paragraph (a) as amended by chapter 80 of the laws
of  2009,  paragraphs  (b), (c), and (d) as amended by chapter 75 of the
laws of 2005, are amended to read as follows:
  (a) For an employer or licensing agency, because  of  an  individual's
age,  race,  creed,  color,  national origin, sexual orientation, GENDER
IDENTITY OR EXPRESSION, military status, sex,  disability,  predisposing
genetic  characteristics,  marital  status,  or domestic violence victim
status, to refuse to hire or employ or  to  bar  or  to  discharge  from
employment such individual or to discriminate against such individual in
compensation or in terms, conditions or privileges of employment.
  (b)  For  an  employment agency to discriminate against any individual
because of age, race, creed, color, national origin, sexual orientation,
GENDER IDENTITY OR EXPRESSION, military status, sex, disability, predis-
posing genetic characteristics, or marital status, in receiving, classi-
fying, disposing or otherwise acting upon applications for its  services
or in referring an applicant or applicants to an employer or employers.
  (c)  For a labor organization, because of the age, race, creed, color,
national origin, sexual  orientation,  GENDER  IDENTITY  OR  EXPRESSION,
military  status, sex, disability, predisposing genetic characteristics,
or marital status of any individual, to exclude or  to  expel  from  its
membership  such individual or to discriminate in any way against any of
its members or against any employer or any  individual  employed  by  an
employer.
  (d)  For  any  employer  or employment agency to print or circulate or
cause to be printed or circulated any statement, advertisement or publi-
cation, or to use any form of application for employment or to make  any
inquiry  in  connection  with  prospective  employment,  which expresses

S. 2406--A                          4                         A. 5710--A

directly or indirectly, any limitation, specification or  discrimination
as  to  age,  race,  creed,  color, national origin, sexual orientation,
GENDER IDENTITY OR EXPRESSION, military status, sex, disability, predis-
posing genetic characteristics, or marital status, or any intent to make
any  such limitation, specification or discrimination, unless based upon
a bona fide occupational qualification; provided, however, that  neither
this  paragraph  nor any provision of this chapter or other law shall be
construed to prohibit the department of civil service or the  department
of personnel of any city containing more than one county from requesting
information  from  applicants  for civil service examinations concerning
any of the aforementioned characteristics, other than sexual orientation
OR GENDER IDENTITY OR EXPRESSION, for the purpose of conducting  studies
to  identify and resolve possible problems in recruitment and testing of
members of minority groups to insure  the  fairest  possible  and  equal
opportunities  for  employment  in  the  civil  service for all persons,
regardless of age, race, creed, color, national  origin,  sexual  orien-
tation, GENDER IDENTITY OR EXPRESSION, military status, sex, disability,
predisposing genetic characteristics, or marital status.
  S  6. Paragraphs (b), (c) and (d) of subdivision 1-a of section 296 of
the executive law, as amended by chapter 106 of the laws  of  2003,  are
amended to read as follows:
  (b)  To  deny  to  or withhold from any person because of race, creed,
color,  national  origin,  sexual  orientation,   GENDER   IDENTITY   OR
EXPRESSION,  military  status,  sex, age, disability, or marital status,
the right to be admitted to or participate in  a  guidance  program,  an
apprenticeship  training program, on-the-job training program, executive
training program, or other occupational training or retraining program;
  (c) To discriminate against any person in his or her pursuit  of  such
programs  or  to discriminate against such a person in the terms, condi-
tions or privileges of such programs  because  of  race,  creed,  color,
national  origin,  sexual  orientation,  GENDER  IDENTITY OR EXPRESSION,
military status, sex, age, disability or marital status;
  (d) To print or circulate or cause to be  printed  or  circulated  any
statement,  advertisement or publication, or to use any form of applica-
tion for such programs or to make any inquiry in  connection  with  such
program  which  expresses, directly or indirectly, any limitation, spec-
ification or discrimination as to race, creed, color,  national  origin,
sexual orientation, GENDER IDENTITY OR EXPRESSION, military status, sex,
age,  disability  or  marital  status, or any intention to make any such
limitation, specification or discrimination, unless based on a bona fide
occupational qualification.
  S 7. Paragraph (a) of subdivision 2 of section 296  of  the  executive
law,  as  amended by chapter 106 of the laws of 2003, is amended to read
as follows:
  (a) It shall be an unlawful discriminatory practice  for  any  person,
being  the  owner, lessee, proprietor, manager, superintendent, agent or
employee of any place of  public  accommodation,  resort  or  amusement,
because  of the race, creed, color, national origin, sexual orientation,
GENDER IDENTITY OR EXPRESSION, military status, sex, [or] disability  or
marital  status  of any person, directly or indirectly, to refuse, with-
hold from or deny to such person any of the accommodations,  advantages,
facilities or privileges thereof, including the extension of credit, or,
directly  or  indirectly, to publish, circulate, issue, display, post or
mail any written or printed communication, notice or  advertisement,  to
the  effect  that  any of the accommodations, advantages, facilities and
privileges of any such place shall be refused, withheld from  or  denied

S. 2406--A                          5                         A. 5710--A

to  any person on account of race, creed, color, national origin, sexual
orientation, GENDER IDENTITY OR EXPRESSION, military status,  sex,  [or]
disability or marital status, or that the patronage or custom thereat of
any  person of or purporting to be of any particular race, creed, color,
national origin, sexual  orientation,  GENDER  IDENTITY  OR  EXPRESSION,
military status, sex or marital status, or having a disability is unwel-
come, objectionable or not acceptable, desired or solicited.
  S  8. Paragraphs (a), (b), (c) and (c-1) of subdivision 2-a of section
296 of the executive law, paragraphs (a), (b) and  (c)  as  amended  and
paragraph (c-1) as added by chapter 106 of the laws of 2003, are amended
to read as follows:
  (a)  To refuse to sell, rent or lease or otherwise to deny to or with-
hold from any person or group of  persons  such  housing  accommodations
because  of  the race, creed, color, disability, national origin, sexual
orientation, GENDER IDENTITY OR EXPRESSION, military status,  age,  sex,
marital  status,  or  familial  status  of such person or persons, or to
represent that any housing accommodation or land is  not  available  for
inspection, sale, rental or lease when in fact it is so available.
  (b)  To  discriminate  against  any person because of his or her race,
creed, color, disability, national origin,  sexual  orientation,  GENDER
IDENTITY  OR  EXPRESSION,  military status, age, sex, marital status, or
familial status in the terms, conditions or privileges of any  publicly-
assisted  housing  accommodations  or in the furnishing of facilities or
services in connection therewith.
  (c) To cause to be made any written or oral inquiry or record concern-
ing the race, creed, color, disability, national origin,  sexual  orien-
tation,  GENDER  IDENTITY OR EXPRESSION, membership in the reserve armed
forces of the United States or in the organized militia  of  the  state,
age, sex, marital status, or familial status of a person seeking to rent
or lease any publicly-assisted housing accommodation; provided, however,
that  nothing in this subdivision shall prohibit a member of the reserve
armed forces of the United States or in the  organized  militia  of  the
state from voluntarily disclosing such membership.
  (c-1)  To  print or circulate or cause to be printed or circulated any
statement, advertisement or publication, or to use any form of  applica-
tion  for the purchase, rental or lease of such housing accommodation or
to make any  record  or  inquiry  in  connection  with  the  prospective
purchase,  rental  or  lease  of  such  a  housing  accommodation  which
expresses, directly or  indirectly,  any  limitation,  specification  or
discrimination  as to race, creed, color, national origin, sexual orien-
tation, GENDER IDENTITY OR EXPRESSION, military status, sex, age,  disa-
bility,  marital  status,  or familial status, or any intent to make any
such limitation, specification or discrimination.
  S 9. Subdivision 3-b of section 296 of the executive law,  as  amended
by chapter 106 of the laws of 2003, is amended to read as follows:
  3-b.  It  shall  be  an  unlawful discriminatory practice for any real
estate broker, real estate salesperson or employee or agent  thereof  or
any  other  individual, corporation, partnership or organization for the
purpose of inducing a real estate transaction from which any such person
or any of its stockholders or members may benefit financially, to repre-
sent that a change has occurred or will or may occur in the  composition
with respect to race, creed, color, national origin, sexual orientation,
GENDER IDENTITY OR EXPRESSION, military status, sex, disability, marital
status,  or  familial  status  of  the owners or occupants in the block,
neighborhood or area in which the  real  property  is  located,  and  to
represent,  directly  or indirectly, that this change will or may result

S. 2406--A                          6                         A. 5710--A

in undesirable consequences in the block, neighborhood or area in  which
the  real property is located, including but not limited to the lowering
of property values, an increase in criminal or anti-social behavior,  or
a decline in the quality of schools or other facilities.
  S 10. Subdivision 4 of section 296 of the executive law, as amended by
chapter 106 of the laws of 2003, is amended to read as follows:
  4.  It  shall  be an unlawful discriminatory practice for an education
corporation or association which holds itself out to the  public  to  be
non-sectarian  and  exempt  from  taxation pursuant to the provisions of
article four of the real property tax law to deny the use of its facili-
ties to any person otherwise qualified, or to permit the  harassment  of
any  student or applicant, by reason of his race, color, religion, disa-
bility,  national  origin,  sexual  orientation,  GENDER   IDENTITY   OR
EXPRESSION, military status, sex, age or marital status, except that any
such  institution  which  establishes or maintains a policy of educating
persons of one sex exclusively may admit students of only one sex.
  S 11. Subdivision 5 of section 296 of the executive law, as amended by
chapter 106 of the laws of 2003, is amended to read as follows:
  5. (a) It shall be an unlawful discriminatory practice for the  owner,
lessee,  sub-lessee,  assignee,  or  managing  agent of, or other person
having the right  to  sell,  rent  or  lease  a  housing  accommodation,
constructed or to be constructed, or any agent or employee thereof:
  (1) To refuse to sell, rent, lease or otherwise to deny to or withhold
from any person or group of persons such a housing accommodation because
of  the  race, creed, color, national origin, sexual orientation, GENDER
IDENTITY OR EXPRESSION, military status, sex, age,  disability,  marital
status,  or  familial  status of such person or persons, or to represent
that any housing accommodation or land is not available for  inspection,
sale, rental or lease when in fact it is so available.
  (2)  To discriminate against any person because of race, creed, color,
national origin, sexual  orientation,  GENDER  IDENTITY  OR  EXPRESSION,
military  status,  sex,  age,  disability,  marital  status, or familial
status in the terms, conditions or privileges of  the  sale,  rental  or
lease  of any such housing accommodation or in the furnishing of facili-
ties or services in connection therewith.
  (3) To print or circulate or cause to be  printed  or  circulated  any
statement,  advertisement or publication, or to use any form of applica-
tion for the purchase, rental or lease of such housing accommodation  or
to  make  any  record  or  inquiry  in  connection  with the prospective
purchase,  rental  or  lease  of  such  a  housing  accommodation  which
expresses,  directly  or  indirectly,  any  limitation, specification or
discrimination as to race, creed, color, national origin, sexual  orien-
tation,  GENDER IDENTITY OR EXPRESSION, military status, sex, age, disa-
bility, marital status, or familial status, or any intent  to  make  any
such limitation, specification or discrimination.
  The provisions of this paragraph (a) shall not apply (1) to the rental
of a housing accommodation in a building which contains housing accommo-
dations  for  not  more  than  two families living independently of each
other, if the owner resides in one of such housing  accommodations,  (2)
to the restriction of the rental of all rooms in a housing accommodation
to  individuals  of the same sex or (3) to the rental of a room or rooms
in a housing accommodation, if such rental is by  the  occupant  of  the
housing  accommodation  or by the owner of the housing accommodation and
the owner resides in such  housing  accommodation  or  (4)  solely  with
respect  to  age  and  familial  status  to the restriction of the sale,
rental or lease of housing accommodations exclusively to persons  sixty-

S. 2406--A                          7                         A. 5710--A

two  years  of  age  or  older and the spouse of any such person, or for
housing intended and operated for  occupancy  by  at  least  one  person
fifty-five  years of age or older per unit. In determining whether hous-
ing  is  intended and operated for occupancy by persons fifty-five years
of age or older, Sec. 807(b) (2) (c) (42 U.S.C. 3607 (b) (2) (c)) of the
federal Fair Housing Act of 1988, as amended, shall apply.
  (b) It shall be an unlawful discriminatory  practice  for  the  owner,
lessee,  sub-lessee,  or  managing  agent of, or other person having the
right of ownership or possession of or the right to sell, rent or lease,
land or commercial space:
  (1) To refuse to sell, rent, lease or otherwise deny  to  or  withhold
from  any person or group of persons land or commercial space because of
the race, creed, color,  national  origin,  sexual  orientation,  GENDER
IDENTITY  OR  EXPRESSION, military status, sex, age, disability, marital
status, or familial status of such person or persons,  or  to  represent
that  any housing accommodation or land is not available for inspection,
sale, rental or lease when in fact it is so available;
  (2) To discriminate against any person because of race, creed,  color,
national  origin,  sexual  orientation,  GENDER  IDENTITY OR EXPRESSION,
military status, sex,  age,  disability,  marital  status,  or  familial
status  in  the  terms,  conditions or privileges of the sale, rental or
lease of any such land or commercial space;  or  in  the  furnishing  of
facilities or services in connection therewith;
  (3)  To  print  or  circulate or cause to be printed or circulated any
statement, advertisement or publication, or to use any form of  applica-
tion  for the purchase, rental or lease of such land or commercial space
or to make any record or inquiry  in  connection  with  the  prospective
purchase,  rental  or  lease  of  such  land  or  commercial space which
expresses, directly or  indirectly,  any  limitation,  specification  or
discrimination  as to race, creed, color, national origin, sexual orien-
tation, GENDER IDENTITY OR EXPRESSION, military status, sex, age,  disa-
bility,  marital  status,  or familial status; or any intent to make any
such limitation, specification or discrimination.
  (4) With respect to age and familial status, the  provisions  of  this
paragraph  shall  not  apply  to  the restriction of the sale, rental or
lease of land or commercial  space  exclusively  to  persons  fifty-five
years  of  age  or  older  and  the spouse of any such person, or to the
restriction of the sale, rental or lease of land  to  be  used  for  the
construction,  or  location  of  housing  accommodations exclusively for
persons sixty-two years of age or older, or intended  and  operated  for
occupancy  by  at  least one person fifty-five years of age or older per
unit. In determining whether housing is intended and operated for  occu-
pancy  by  persons fifty-five years of age or older, Sec. 807(b) (2) (c)
(42 U.S.C. 3607(b) (2) (c)) of the federal Fair Housing Act of 1988,  as
amended, shall apply.
  (c)  It  shall  be  an  unlawful  discriminatory practice for any real
estate broker, real estate salesperson or employee or agent thereof:
  (1) To refuse to sell, rent or lease any housing  accommodation,  land
or  commercial  space  to any person or group of persons or to refuse to
negotiate for the sale, rental or lease, of any  housing  accommodation,
land  or  commercial  space to any person or group of persons because of
the race, creed, color,  national  origin,  sexual  orientation,  GENDER
IDENTITY  OR  EXPRESSION, military status, sex, age, disability, marital
status, or familial status of such person or persons,  or  to  represent
that  any  housing accommodation, land or commercial space is not avail-
able for inspection, sale, rental or lease when in fact it is so  avail-

S. 2406--A                          8                         A. 5710--A

able,  or  otherwise to deny or withhold any housing accommodation, land
or commercial space or any facilities of any housing accommodation, land
or commercial space from any person or group of persons because  of  the
race, creed, color, national origin, sexual orientation, GENDER IDENTITY
OR EXPRESSION, military status, sex, age, disability, marital status, or
familial status of such person or persons.
  (2)  To  print  or  circulate or cause to be printed or circulated any
statement, advertisement or publication, or to use any form of  applica-
tion  for  the  purchase,  rental or lease of any housing accommodation,
land or commercial space or to make any record or inquiry in  connection
with  the  prospective purchase, rental or lease of any housing accommo-
dation, land or commercial space which expresses, directly or  indirect-
ly,  any limitation, specification, or discrimination as to race, creed,
color,  national  origin,  sexual  orientation,   GENDER   IDENTITY   OR
EXPRESSION,  military  status,  sex, age, disability, marital status, or
familial status; or any intent to make any such  limitation,  specifica-
tion or discrimination.
  (3)  With  respect  to age and familial status, the provisions of this
paragraph shall not apply to the restriction  of  the  sale,  rental  or
lease of any HOUSING ACCOMMODATION, land or commercial space exclusively
to  persons  fifty-five years of age or older and the spouse of any such
person, or to the restriction of the sale, rental or lease of any  hous-
ing accommodation or land to be used for the construction or location of
housing  accommodations  for persons sixty-two years of age or older, or
intended and operated for occupancy by at least  one  person  fifty-five
years  of  age  or  older  per  unit.  In determining whether housing is
intended and operated for occupancy by persons fifty-five years  of  age
or  older,  Sec.    807  (b) (2) (c) (42 U.S.C. 3607 (b) (2) (c)) of the
federal Fair Housing Act of 1988, as amended, shall apply.
  (d) It shall be an  unlawful  discriminatory  practice  for  any  real
estate board, because of the race, creed, color, national origin, sexual
orientation,  GENDER  IDENTITY OR EXPRESSION, military status, age, sex,
disability, marital status, or familial status of any individual who  is
otherwise  qualified for membership, to exclude or expel such individual
from membership, or to  discriminate  against  such  individual  in  the
terms, conditions and privileges of membership in such board.
  (e)  It  shall  be  an unlawful discriminatory practice for the owner,
proprietor or managing agent of, or other person  having  the  right  to
provide care and services in, a private proprietary nursing home, conva-
lescent  home,  or home for adults, or an intermediate care facility, as
defined  in  section  two  of  the  social  services   law,   heretofore
constructed,  or to be constructed, or any agent or employee thereof, to
refuse to provide services and care in such  home  or  facility  to  any
individual  or  to  discriminate  against  any  individual in the terms,
conditions, and privileges of such services and care solely because such
individual is a blind person. For purposes of this paragraph,  a  "blind
person" shall mean a person who is registered as a blind person with the
commission  for the visually handicapped and who meets the definition of
a "blind person" pursuant to  section  three  of  chapter  four  hundred
fifteen  of  the  laws  of nineteen hundred thirteen entitled "An act to
establish a state commission for improving the condition of the blind of
the state of New York, and making an appropriation therefor".
  (f) The provisions of this subdivision, as they relate to  age,  shall
not apply to persons under the age of eighteen years.
  (g)  It  shall  be  an unlawful discriminatory practice for any person
offering or providing housing accommodations, land or  commercial  space

S. 2406--A                          9                         A. 5710--A

as described in paragraphs (a), (b), and (c) of this subdivision to make
or  cause  to  be  made any written or oral inquiry or record concerning
membership of any person in the state organized militia in  relation  to
the  purchase,  rental  or lease of such housing accommodation, land, or
commercial space, provided, however, that nothing  in  this  subdivision
shall  prohibit a member of the state organized militia from voluntarily
disclosing such membership.
  S 12. Paragraph (a) of subdivision 9 of section 296 of  the  executive
law,  as  amended by chapter 106 of the laws of 2003, is amended to read
as follows:
  (a) It shall be an  unlawful  discriminatory  practice  for  any  fire
department or fire company therein, through any member or members there-
of, officers, board of fire commissioners or other body or office having
power  of appointment of volunteer firefighters, directly or indirectly,
by ritualistic practice, constitutional or by-law prescription, by tacit
agreement among its members, or otherwise, to  deny  to  any  individual
membership  in any volunteer fire department or fire company therein, or
to expel or discriminate against any volunteer member of a fire  depart-
ment  or  fire  company  therein,  because  of  the  race, creed, color,
national origin, sexual  orientation,  GENDER  IDENTITY  OR  EXPRESSION,
military status, sex or marital status of such individual.
  S  13.  Subdivision 13 of section 296 of the executive law, as amended
by chapter 106 of the laws of 2003, is amended to read as follows:
  13. It shall be an unlawful discriminatory practice (i) for any person
to discriminate against, boycott or blacklist, or to refuse to buy from,
sell to or trade with, any person, because of the  race,  creed,  color,
national  origin,  sexual  orientation,  GENDER  IDENTITY OR EXPRESSION,
military status or sex of such person, or  of  such  person's  partners,
members,  stockholders,  directors, officers, managers, superintendents,
agents, employees, business associates, suppliers or customers, or  (ii)
for  any  person  wilfully  to  do any act or refrain from doing any act
which enables any such person to  take  such  action.  This  subdivision
shall not apply to:
  (a) Boycotts connected with labor disputes; or
  (b) Boycotts to protest unlawful discriminatory practices.
  S  14.  Subdivisions 1, 2 and 3 of section 296-a of the executive law,
as amended by chapter 106 of the laws of 2003, are amended  to  read  as
follows:
  1. It shall be an unlawful discriminatory practice for any creditor or
any officer, agent or employee thereof:
  a.  In  the  case  of  applications  for  credit  with  respect to the
purchase, acquisition, construction, rehabilitation, repair  or  mainte-
nance of any housing accommodation, land or commercial space to discrim-
inate  against  any  such  applicant  because of the race, creed, color,
national origin, sexual  orientation,  GENDER  IDENTITY  OR  EXPRESSION,
military  status,  age,  sex,  marital  status,  disability, or familial
status of such applicant  or  applicants  or  any  member,  stockholder,
director, officer or employee of such applicant or applicants, or of the
prospective  occupants or tenants of such housing accommodation, land or
commercial space, in the granting, withholding, extending  or  renewing,
or in the fixing of the rates, terms or conditions of, any such credit;
  b.  To  discriminate in the granting, withholding, extending or renew-
ing, or in the fixing of the rates, terms or conditions of, any form  of
credit,  on  the  basis  of  race, creed, color, national origin, sexual
orientation, GENDER IDENTITY OR EXPRESSION, military status,  age,  sex,
marital status, disability, or familial status;

S. 2406--A                         10                         A. 5710--A

  c. To use any form of application for credit or use or make any record
or  inquiry  which  expresses,  directly  or indirectly, any limitation,
specification, or discrimination as  to  race,  creed,  color,  national
origin,  sexual  orientation,  GENDER  IDENTITY  OR EXPRESSION, military
status, age, sex, marital status, disability, or familial status;
  d.  To make any inquiry of an applicant concerning his or her capacity
to reproduce, or his or her use or advocacy of any form of birth control
or family planning;
  e. To refuse to consider  sources  of  an  applicant's  income  or  to
subject  an  applicant's  income  to  discounting,  in whole or in part,
because of an applicant's race, creed, color,  national  origin,  sexual
orientation,  GENDER  IDENTITY OR EXPRESSION, military status, age, sex,
marital status, childbearing potential, disability, or familial status;
  f. To discriminate  against  a  married  person  because  such  person
neither uses nor is known by the surname of his or her spouse.
  This  paragraph  shall  not  apply to any situation where the use of a
surname would constitute or result in a criminal act.
  2. Without limiting the generality of subdivision one of this section,
it shall be considered discriminatory if, because of an  applicant's  or
class  of applicants' race, creed, color, national origin, sexual orien-
tation, GENDER IDENTITY OR EXPRESSION, military status, age, sex,  mari-
tal  status or disability, or familial status, (i) an applicant or class
of applicants is denied credit in circumstances where  other  applicants
of  like  overall  credit worthiness are granted credit, or (ii) special
requirements or conditions, such as requiring co-obligors or  reapplica-
tion upon marriage, are imposed upon an applicant or class of applicants
in  circumstances  where  similar  requirements  or  conditions  are not
imposed upon other applicants of like overall credit worthiness.
  3. It shall not  be  considered  discriminatory  if  credit  differen-
tiations  or  decisions  are based upon factually supportable, objective
differences in applicants' overall credit worthiness, which may  include
reference  to  such  factors  as current income, assets and prior credit
history of such applicants, as well as reference to any  other  relevant
factually  supportable  data;  provided, however, that no creditor shall
consider, in evaluating the credit worthiness of an applicant, aggregate
statistics or assumptions  relating  to  race,  creed,  color,  national
origin,  sexual  orientation,  GENDER  IDENTITY  OR EXPRESSION, military
status, sex, marital status or disability, or to the likelihood  of  any
group of persons bearing or rearing children, or for that reason receiv-
ing diminished or interrupted income in the future.
  S 15. Section 40-c of the civil rights law, as amended by chapter 2 of
the laws of 2002, is amended to read as follows:
  S 40-c. Discrimination. 1. All persons within the jurisdiction of this
state  shall  be  entitled  to  the equal protection of the laws of this
state or any subdivision thereof.
  2. No person shall, because of race, creed,  color,  national  origin,
sex,  marital status, sexual orientation, GENDER IDENTITY OR EXPRESSION,
or disability, as such term is defined in section two hundred ninety-two
of the executive law, be subjected to any discrimination in his  or  her
civil  rights, or to any harassment, as defined in section 240.25 of the
penal law, in the exercise thereof, by any other person or by any  firm,
corporation or institution, or by the state or any agency or subdivision
of the state.
  S  16.  Paragraph (a) of subdivision 1 of section 313 of the education
law, as amended by chapter 2 of the laws of 2002, is amended to read  as
follows:

S. 2406--A                         11                         A. 5710--A

  (a) It is hereby declared to be the policy of the state that the Amer-
ican  ideal of equality of opportunity requires that students, otherwise
qualified, be admitted to educational institutions and be  given  access
to all the educational programs and courses operated or provided by such
institutions  without regard to race, color, sex, religion, creed, mari-
tal status, age, sexual orientation as defined in  section  two  hundred
ninety-two  of  the  executive  law,  GENDER  IDENTITY  OR EXPRESSION AS
DEFINED IN SECTION TWO HUNDRED  NINETY-TWO  OF  THE  EXECUTIVE  LAW,  or
national origin, except that, with regard to religious or denominational
educational  institutions, students, otherwise qualified, shall have the
equal opportunity to attend therein without  discrimination  because  of
race,  color, sex, marital status, age, sexual orientation as defined in
section two hundred ninety-two of the executive law, GENDER IDENTITY  OR
EXPRESSION AS DEFINED IN SECTION TWO HUNDRED NINETY-TWO OF THE EXECUTIVE
LAW,  or national origin. It is a fundamental American right for members
of various religious faiths to establish and maintain educational insti-
tutions exclusively or primarily for students  of  their  own  religious
faith  or to effectuate the religious principles in furtherance of which
they are maintained. Nothing herein contained shall  impair  or  abridge
that right.
  S 17. Subdivision 3 of section 313 of the education law, as amended by
chapter 2 of the laws of 2002, is amended to read as follows:
  (3)  Unfair  educational  practices. It shall be an unfair educational
practice for an educational institution after September fifteenth, nine-
teen hundred forty-eight:
  (a) To exclude or limit or otherwise discriminate against  any  person
or  persons  seeking admission as students to such institution or to any
educational program or course operated or provided by  such  institution
because of race, religion, creed, sex, color, marital status, age, sexu-
al orientation as defined in section two hundred ninety-two of the exec-
utive  law,  GENDER  IDENTITY  OR  EXPRESSION  AS DEFINED IN SECTION TWO
HUNDRED NINETY-TWO OF THE EXECUTIVE LAW, or national origin; except that
nothing in this section shall be deemed to affect, in any way, the right
of a religious or denominational educational institution to  select  its
students  exclusively  or  primarily  from  members  of such religion or
denomination or from giving preference in such selection to such members
or to make such selection of its  students  as  is  calculated  by  such
institution  to  promote the religious principles for which it is estab-
lished or maintained. Nothing herein contained shall impair  or  abridge
the  right of an independent institution, which establishes or maintains
a policy of educating persons of one sex exclusively, to admit  students
of only one sex.
  (b) To penalize any individual because he or she has initiated, testi-
fied, participated or assisted in any proceedings under this section.
  (c)  To  accept any endowment or gift of money or property conditioned
upon teaching the doctrine of supremacy of any particular race.
  (d) With respect to any individual who withdraws  from  attendance  to
serve on active duty in the armed forces of the United States in time of
war,  including  any individual who withdrew from attendance on or after
August second, nineteen hundred ninety to serve on active  duty  in  the
armed  forces  of the United States in the Persian Gulf conflict: (i) to
deny or limit the readmission of such individual to such institution  or
to any educational program or course operated or provided by such insti-
tution  because  of  such  withdrawal  from attendance or because of the
failure to complete any educational program or course due to such  with-
drawal;  (ii)  to  impose any academic penalty on such person because of

S. 2406--A                         12                         A. 5710--A

such withdrawal or because of the failure to  complete  any  educational
program  or  course due to such withdrawal; (iii) to reduce or eliminate
any financial aid award granted to such individual which  could  not  be
used,  in  whole  or  part, because of such withdrawal or because of the
failure to complete any educational program or course due to such  with-
drawal;  or  (iv)  to  fail to provide a credit or refund of tuition and
fees paid by such individual for  any  semester,  term  or  quarter  not
completed  because  of  such  withdrawal  or  because  of the failure to
complete any program or course due to such withdrawal.
  (e) It shall not be an unfair educational practice for any educational
institution to use criteria  other  than  race,  religion,  creed,  sex,
color, marital status, age, sexual orientation as defined in section two
hundred  ninety-two  of the executive law, GENDER IDENTITY OR EXPRESSION
AS DEFINED IN SECTION TWO HUNDRED NINETY-TWO OF THE  EXECUTIVE  LAW,  or
national  origin  in the admission of students to such institution or to
any of the educational programs and courses operated or provided by such
institution.
  S 18. Section 485.00 of the penal law, as added by chapter 107 of  the
laws of 2000, is amended to read as follows:
S 485.00 Legislative findings.
  The legislature finds and determines as follows: criminal acts involv-
ing  violence,  intimidation and destruction of property based upon bias
and prejudice have become more prevalent in New  York  state  in  recent
years.    The  intolerable  truth  is that in these crimes, commonly and
justly referred to as "hate crimes", victims are intentionally selected,
in whole or in part, because of  their  race,  color,  national  origin,
ancestry,  gender,  GENDER  IDENTITY  OR EXPRESSION, religion, religious
practice, age, disability or sexual orientation.  Hate  crimes  do  more
than  threaten  the  safety and welfare of all citizens. They inflict on
victims incalculable physical and emotional damage and tear at the  very
fabric  of  free  society.  Crimes  motivated by invidious hatred toward
particular groups not only harm individual victims but send  a  powerful
message of intolerance and discrimination to all members of the group to
which the victim belongs.  Hate crimes can and do intimidate and disrupt
entire communities and vitiate the civility that is essential to healthy
democratic  processes.    In  a  democratic  society, citizens cannot be
required to approve of the beliefs and practices  of  others,  but  must
never  commit  criminal  acts  on  account of them. Current law does not
adequately recognize the harm to public order and individual safety that
hate crimes cause. Therefore, our laws must be strengthened  to  provide
clear  recognition  of  the  gravity  of  hate crimes and the compelling
importance of preventing their recurrence.
  Accordingly, the legislature  finds  and  declares  that  hate  crimes
should be prosecuted and punished with appropriate severity.
  S  19.  Subdivisions 1, 2 and 4 of section 485.05 of the penal law, as
added by chapter 107 of the  laws  of  2000,  are  amended  to  read  as
follows:
  1.  A  person  commits a hate crime when he or she commits a specified
offense and either:
  (a) intentionally selects the  person  against  whom  the  offense  is
committed  or  intended  to be committed in whole or in substantial part
because of a belief or perception regarding the  race,  color,  national
origin, ancestry, gender, GENDER IDENTITY OR EXPRESSION, religion, reli-
gious  practice,  age,  disability  or  sexual  orientation of a person,
regardless of whether the belief or perception is correct, or

S. 2406--A                         13                         A. 5710--A

  (b) intentionally commits the act or acts constituting the offense  in
whole or in substantial part because of a belief or perception regarding
the  race,  color, national origin, ancestry, gender, GENDER IDENTITY OR
EXPRESSION, religion, religious  practice,  age,  disability  or  sexual
orientation  of a person, regardless of whether the belief or perception
is correct.
  2. Proof of race, color, national  origin,  ancestry,  gender,  GENDER
IDENTITY OR EXPRESSION, religion, religious practice, age, disability or
sexual orientation of the defendant, the victim or of both the defendant
and  the  victim  does  not,  by  itself,  constitute legally sufficient
evidence satisfying the people's burden under paragraph (a)  or  (b)  of
subdivision one of this section.
  4. For purposes of this section:
  (a) the term "age" means sixty years old or more;
  (b)  the  term "disability" means a physical or mental impairment that
substantially limits a major life activity[.];
  (C) THE TERM "GENDER IDENTITY OR EXPRESSION"  MEANS  HAVING  OR  BEING
PERCEIVED  AS HAVING A GENDER IDENTITY, SELF-IMAGE, APPEARANCE, BEHAVIOR
OR EXPRESSION WHETHER OR NOT THAT GENDER IDENTITY,  SELF-IMAGE,  APPEAR-
ANCE,  BEHAVIOR OR EXPRESSION IS DIFFERENT FROM THAT TRADITIONALLY ASSO-
CIATED WITH THE SEX ASSIGNED TO THAT PERSON AT BIRTH.
  S 20. Subdivision 3 of section 240.30 of the penal law, as amended  by
chapter 510 of the laws of 2008, is amended to read as follows:
  3.  Strikes,  shoves,  kicks,  or otherwise subjects another person to
physical contact, or attempts or threatens to do the same because  of  a
belief  or  perception  regarding  such  person's  race, color, national
origin, ancestry, gender, GENDER IDENTITY OR EXPRESSION, religion, reli-
gious practice, age, disability or  sexual  orientation,  regardless  of
whether the belief or perception is correct; or
  S  21.  The  opening  paragraph of section 240.31 of the penal law, as
amended by chapter 49 of the  laws  of  2006,  is  amended  to  read  as
follows:
  A  person  is guilty of aggravated harassment in the first degree when
with intent to harass, annoy, threaten or alarm another person,  because
of  a belief or perception regarding such person's race, color, national
origin, ancestry, gender, GENDER IDENTITY OR EXPRESSION, religion, reli-
gious practice, age, disability or  sexual  orientation,  regardless  of
whether the belief or perception is correct, he or she:
  S  22.  Section  240.00  of  the  penal law is amended by adding a new
subdivision 7 to read as follows:
  7. "GENDER IDENTITY OR EXPRESSION" MEANS HAVING OR BEING PERCEIVED  AS
HAVING A GENDER IDENTITY, SELF-IMAGE, APPEARANCE, BEHAVIOR OR EXPRESSION
WHETHER OR NOT THAT GENDER IDENTITY, SELF-IMAGE, APPEARANCE, BEHAVIOR OR
EXPRESSION  IS DIFFERENT FROM THAT TRADITIONALLY ASSOCIATED WITH THE SEX
ASSIGNED TO THAT PERSON AT BIRTH.
  S 23. Paragraph (c) of subdivision 7 of section 200.50 of the criminal
procedure law, as amended by chapter 7 of the laws of 2007,  is  amended
to read as follows:
  (c) in the case of any hate crime, as defined in section 485.05 of the
penal  law,  specifies,  as applicable, that the defendant or defendants
intentionally selected the person against whom the offense was committed
or intended to be committed; or intentionally committed the act or  acts
constituting  the  offense, in whole or in substantial part because of a
belief or perception regarding the race, color, national origin,  ances-
try,  gender,  GENDER  IDENTITY OR EXPRESSION, religion, religious prac-
tice, age, disability or sexual orientation of a person; and

S. 2406--A                         14                         A. 5710--A

  S 24. This act shall take effect on the thirtieth day after  it  shall
have  become  a  law;  provided, however, that sections eighteen through
twenty-three of this act shall take effect on the first of November next
succeeding the date on which it shall have become a law.