In an important decision for the transgender community, New York State Supreme Court Justice Debra Silber has ruled in Wilson v. Phoenix House that Plaintiff Sabrina Wilson must be allowed to proceed with her discrimination case against Phoenix House, a national alcohol and drug treatment provider. Armen H. Merjian, Senior Staff Attorney at Housing Works, was the counsel for Ms. Wilson.

Ms. Wilson, who has identified as female since she was 14, entered Phoenix House as an alternative to incarceration. Despite her gender identity, Phoenix House prohibited Ms. Wilson from dressing as a woman, from sitting among women in meetings, and from joining a woman’s support group, even after she won the support of the women in that group.

Ultimately, Phoenix House failed to advance her in treatment, despite her significant progress – she was in fact appointed a resident coordinator – and decided to terminate her from the program, on the basis that they could not “suit [her] needs as a transgender in our program.”

“Despite plaintiff’s inquiries and requests,” Justice Silber observed, “an alternative program that could ‘meet her needs’ was not located by Phoenix House, and plaintiff, angry and frustrated that they would not let her complete the treatment program, left Phoenix House without permission.”

Following this ordeal, Ms. Wilson relapsed and spent two and one-half years in prison.

Phoenix House moved to dismiss the lawsuit, arguing that the State and City Human Rights Laws should not apply to Phoenix House, among other reasons because the residential facility was not a “dwelling.” Such arguments, if upheld, would have provided Phoenix House with free rein to discriminate against its clients on the basis of gender and any other protected category, casting it beyond the reach of the law.

Justice Silber rejected each of the Defendants’ arguments, allowing all five of Ms. Wilson’s claims to advance. Justice Silber began by noting that while the “legal and political community has made great strides in the last decade toward assuring legal equality for lesbian, gay and bisexual persons . . . with regard to transgendered and other gender nonconforming people, there has been far less progress in addressing their legal rights.”

In upholding Ms. Wilson’s right to sue, Justice Silber noted that transgender individuals are more likely to be assaulted, harassed, and raped in prison, “and therefore programs such as Defendant’s are even more critical for them.”

Armen H. Merjian said: “Rather than contest the facts, Phoenix House moved to dismiss, asserting that the Human Rights Laws should not apply to their program. We are delighted that the Court has affirmed that Phoenix House is not above the law, and that transgender folks and others have a right to challenge odious discrimination in this and analogous settings. As Justice Silber noted, ‘there has been a considerable lack of understanding in the courts with regard to issues of concern to this population.’ This decision is another step forward in enhancing that understanding.”

Here is the NY Law Journal story:

Judge Says Transgender Woman May Sue Drug Program for Bias

John Caher

A transgender individual who fled from a residential drug treatment program can sue the program for housing discrimination for failing to accommodate her special needs, a Brooklyn judge has held.

Acting Supreme Court Justice Debra Silber (See Profile) said Sabire Wilson can seek remedies ranging from injunctive relief to punitive damages against Phoenix House’s drug treatment program and its director, Sydney Hargrove.

Silber, bemoaning the “considerable lack of understanding in the courts with regard to issues of concern” to the transgender population, said Wilson is entitled to her day in court.

Wilson, a 32-year-old, homeless, male-to-female transgender who was diagnosed with a gender identity disorder when she was 16, was arrested in 2008 for a drug crime, her first felony offense, according to court papers. She signed off on a plea bargain and agreed, as an alternative to incarceration, to enter the residential treatment program at Phoenix House in Brooklyn.

In her complaint, Wilson alleges she was directed to use the men’s rest room and share a room with men because she remained biologically male. She also claims she was forbidden to wear her wig and high-heels even though women in the program were allowed to wear wigs and heels; was forced to sit with men during counseling sessions; was expelled from a gender-specific women’s support group; and was ultimately told she would be transferred to a different residential program.

“Despite plaintiff’s inquiries and requests, an alternative program that could ‘meet her needs’ was not located by Phoenix House, and plaintiff, angry and frustrated that they would not let her complete the treatment program, left Phoenix House without permission,” Silber wrote, noting that Wilson was ultimately resentenced to 2 1/2 years in state prison.

Silber said a study has shown that transgender people are more likely to be neglected, harassed, humiliated and raped in prison, “and therefore programs such as defendants’ are even more critical for them.”

Wilson sued under the state and city human rights laws, alleging housing discrimination and disability discrimination based on the gender identity disorder. Phoenix House and Hargrove submitted a pre-answer motion to dismiss, but Silber allowed virtually all of the claims to proceed.

In a 46-page decision dated Dec. 10, Silber traced the recent legal and societal history of transgender people and said that while “great strides” have been made in assuring legal equality for gay, lesbian and bisexual individuals, “with regard to transgendered and other gender nonconforming people, there has been far less progress.”

“As our society evolves, the concept of gender is evolving from a ‘coercive binary regime’ toward a more fluid identification of one’s gender, thus moving claims of gender identity disorder and any concomitant claims of disability into the realm of political unacceptability,” Silber wrote. “But society is not there yet.”

Silber said there are only two openly transgender judges in the country and said attorneys, advocates and courts have yet to figure out if transgender discrimination claims fall under the rubric of disability discrimination, gender discrimination, both or neither.

Here, the defendants argued that Wilson could not sustain a disability bias claim because she has not pleaded a disability, regardless of the gender identity disorder diagnosis. The defendants also maintained that the housing discrimination laws apply to landlords, and not to facilities such as theirs.

Silber disagreed.

The judge said gender identity disorder is a disability under both the state and city human rights laws, and also concluded that housing discrimination laws apply to institutions such as Phoenix House.

Wilson was represented by Armen Merjian of Housing Works, who was not immediately available for comment.

The defendants were represented by Joel Simon and Marcia Raicus of Smith Mazure Director Wilkins Young & Yagerman in Manhattan. Simon said he was reviewing the decision.

|John Caher can be reached at jcaheralm.com.