Kaye Scholer Clients Are "Prevailing Parties" in Transgender Birth Certificate Case Against the City of New York
On, May 3, 2016, the New York Supreme Court ruled on behalf of Kaye Scholer and the Transgender Legal Defense and Education Fund (TLDEF) that birth certificates are a public accommodation, and that under the New York City Human Rights Law, the petitioners in Prinzivalli v. Farley, who were represented by Kaye Scholer and TLDEF, were prevailing parties. The Court held that the Prinzivalli lawsuit was a catalyst to affect change in the City's policy governing the amendment of birth certificates for transgender people. As the Court found, there was "a reasonable, if not inescapable inference" that commencement of the litigation led the City to eliminate the convertive surgery requirement for transgender people seeking to correct the sex designation on their birth certificates in 2014. The court referred the issue of the amount of fees owed to petitioners to a special referee.
Prinzivalli v. Farley was originally filed pro se by Joann Prinzivalli in 2009 in the state Supreme Court to challenge a discriminatory regulation requiring proof of "convertive surgery" before issuing a new birth certificate to transgender applicants. Whereas the federal government allowed transgender people to change their gender marker on their passports and Social Security accounts with a doctor's certification that the person has had appropriate clinical treatment, the New York City Health Department required written proof, "satisfactory to the department that the applicant has undergone convertive surgery," which it defines as genital surgery. The court noted that the City resisted efforts to amend the regulation despite "awareness of federal policy changes as far back as 2010."
Five years after the commencement of the Prinzivalli litigation, on December 8, 2014, the New York City Council passed a law eliminating the requirement that a person requesting a change to the gender marker on their birth certificate present proof of convertive surgery, and on the following day, the Department of Health and Mental Hygiene adopted a rule with the same language as the City Council legislation. Kaye Scholer then moved for attorneys' fees and costs under the New York City Human Rights Law. On May 3, 2016, the Court granted the motion and referred the issue as to the amount of fees to a special referee.
Kaye Scholer served as co-counsel for the petitioners with TLDEF. The pro bono team representing the petitioners included partner Angela Vicari and associate Paul Andrews, who successfully argued the motion in court, and former associates Lindsay Moilanen, Michel Pignatelio and Hillary Warren.