LGBT Legislative Update for May 2011
In my monthly newsletter, Lesbian/Gay Law Notes, I include a section summarizing legislative news, and it occurred to me that as I finish up work on the June issue, I should post a copy of that section of the newsletter on this blog. Corrections and additions are most welcome, and if received quickly enough might even be incorporated in the June issue of the newsletter. I am constantly amazed at the sheer volume of legislative activity relevant to LGBT issues that takes place each month.
Federal – May 3 saw the introduction of H.R. 1681, the “Every Child Deserves a Family Act,” by Rep. Pete Stark (D-CA), ranking minority member of the relevant House Ways & Means subcommittee, with 33 original co-sponsors. Identifying a shortage of available homes for placement of foster and adoptive children as a matter of federal concern, the bill would ban discrimination in adoption and foster placement on the basis of the sexual orientation, marital status, or gender identity of the potential parent, or the sexual orientation or gender identity of the child. The measure responds to past and pending efforts in several states to prohibit LGBT people and/or unmarried couples from being foster or adoptive parents. 5/3/11 Cong. Documents, 2011 WLNR 8657874. There was virtually no hope that the measure would win House approval in the current Congress, since the Republicans, many of whom strongly support discrimination against GLBT prospective adoptive or foster parents, control the House.
* * * On May 5, Rep. Mike Honda (D-CA) introduced the “Reuniting Families Act” in the House of Representatives. Among other reforms to the immigration process, the bill would eliminate discrimination in immigration against LGBT U.S. residents and their foreign-born partners. The measure is expected to have no chance of passage in the current Republican-controlled House, since it would involve recognizing some sort of family relationship status for same-sex couples, which is anathema to most House Republicans.
* * * On May 12, Senator John Kerry (D-Mass) introduced the Reconnecting Youth to Prevent Homelessness Act, which would stimulate the development of programs to improve family relationships and prevent homelessness for LGBTQ youth. It would also provide training, educational opportunities, and permanency planning for older foster youth to help in the transition to independent living. Among other efforts to reduce youth homelessness, the measure would establish a national standard under which foster children would not “age out” of the system until their 21st birthday. (Many states extend coverage for foster care only to the late teen years.) 39 organizations, mainly identified as LGBT rights groups, announced support for the measure, which has a snowball’s chance in hell of passing the House of Representatives but might get somewhere in the Senate. Congressional Documents, May 12.
* * * On May 26, the House of Representatives approved the National Defense Authorization Act on a 322-96 vote. An amendment had been added to the measure in committee that would add another step prior to implementation of the Don’t Ask Don’t Tell Repeal Act of 2010, by requiring that the certification mandated by that statute go beyond the President, Secretary of Defense and Chairman of the Joint Chiefs of Staff to include individual certifications from each service Chief of Staff that implementation of repeal of DADT would not harm unit readiness and morale. In addition, Republicans insisted on inserting an amendment to “reaffirm” the policy against recognition of same-sex marriage contained in Section 3 of the Defense of Marriage Act, which was cross-referenced in the DADT repeal act to make clear that House Republicans oppose equal treatment for LGB service-members who have same-sex partners. They oppose such treatment because they are biased and prejudiced against same-sex couples, in accordance with the platform on which their party campaigned for national office in 2008, and they wanted to be sure to make that point in any pending legislation that might have any relevance to the issue. In addition, just to make sure that their anti-gay pandering is maximally effective, House Republicans added an amendment to prohibit same-sex marriages from being performed at military bases, even if they are located in jurisdictions that issue licenses for same-sex marriages, as part of House Republicans’ mission to make sure that LGB service-members are reminded at every turn that they are second-class citizens unworthy of equal respect and treatment from the Department of Defense. This amendment was inspired by a premature announcement by the head of Navy chaplains that after DADT was repealed such marriages could take place on a bases, a position that was abandoned as soon as Republican members of Congress criticized it. Gay Republican groups proved totally ineffective in attempting to discourage Republican House members from passing these amendments. There were hopes that some - perhaps all - of these anti-LGB amendments would be omitted from the Senate version of the bill, which might prevail in a conference committee, but don't hold your breath....
Arizona – Governor Jan Brewer signed into law a measure intended to overrule the effect of the U.S. Supreme Court’s decision in Christian Legal Society v. Martinez, 130 S. Ct. 2971 (2010), which had rejected a 1st Amendment challenge to a California state law school’s refusal to extend official recognition to a CLS chapter whose membership policy violated the school’s anti-discrimination policy. The new Arizona law prohibits public universities from relying on their non-discrimination policies to deny official recognition to religiously-based student organizations. Addressing another religion-related issue that has roiled the waters in higher education and produced several court decisions, the new Arizona law requires graduate programs in fields such as psychological counseling and social work to accommodate the religious views of students who object to counseling gay people about their relationships. A small matter of facilitating sin, as we understand it… Expect Establishment Clause challenges to the new Arizona law at some point.
California – On May 9, the Senate voted 21-15 to approve SB 117, a bill that would require businesses that want to enter into contracts with the state valued in excess of $100,00 to afford equal benefit rights to the same-sex spouses of their employees. This would update a measure enacted in 2003 that required contractors to provide equal benefits to registered domestic partners of employees. The new law would ensure that the same-sex marriages contracted between June and November during 2008 and still legally recognized in the state despite Proposition 8 would be entitled to the same treatment. San Diego Gay & Lesbian News, May 9.
Colorado – Governor John Hickenlooper signed into law a measure requiring school districts to adopt anti-bullying policies and programs and providing some grant money to assist local school districts in that effort. At the May 13 bill-signing ceremony, Hickenlooper revealed that he had experienced bullying first-hand as a student. Most of the discussion about the bill had focused on the need for such programs to make equal educational opportunity available to LGBT youth. Fort Collins Coloradoan, May 18.
Connecticut – The House of Representatives approved legislation on May 19 that would add “gender identity or expression” to the forbidden grounds of discrimination in the state’s human rights law, which already covers sexual orientation in addition to the categories specified by most states. The vote was 77-62 in favor. It came following a five-hour debate during which opponents, most prominently an intellectually-challenged Republican who represents Norwich, Christopher Coutu, argued that cross-dressing male pedophiles might be encouraged to take advantage of the law in order to follow young girls into restrooms. Wilton Villager, May 20. Although more than a dozen jurisdictions have forbidden such discrimination, some dating back to the 1990s, without any reports of an outbreak of cross-dressing pedophiles targeting girls in restrooms, the admirably restrained mainstream media has not focused withering ridicule on those who continue to make such arguments. Bravo to the solons of the free press, and to the sane House majority that rejected a Republican amendment to create various exemptions, including exempting restrooms from the public accommodations provisions. Governor Malloy has stated that he would sign the measure if it clears the legislature. Depending the timing of bills pending in some other states, that would make Connecticut the 15th state to ban such discrimination. * * * On May 26 the Senate voted 36-0 to approve a bill that expands protection for children against bullying, to include out-of-school harassment by cell phone, email, or social networking sites. The bill expands the definition of bullying to include threats or acts that inflict harm on a fellow student, cause the student to fear for his or her safety, or creat a hostile or disruptive school environment. The categories covered by the bill include race, appearance, religion, disability, sexual orientation or gender identity. Connecticut previously legislated on this issue in 2002, 2006, and 2008. This is the first time the state law will be expanded to take into account the phenomenon of cyberbullying. The Day (New London), May 27.
Delaware – On May 11, Gov. Jack Martell signed into law a measure that makes civil unions available to same-sex couples, providing almost all of the same legal protections, obligations and benefits that are afforded different sex couples who marry under Delaware law. The event was held at the appropriately-named Queen Theatre in Wilmington. The legislation was approved by the Senate on April 7, by the House on April 14, and will take effect on January 1, 2012.
Florida – The Volusia County Council voted 6-1 on May 19 to add sexual orientation and gender identity as forbidden grounds for discrimination under the County’s ordinance prohibition discrimination in employment, public housing and public accommodations. The measure exempts private clubs and religious organizations. Since there is no statewide ban on such discrimination in Florida, several counties have stepped forward to enact their own measures, in addition to some municipalities. Orlando Sentinel, May 20. Your editor takes this one personally, because his mother lives in Volusia County with one of his brothers and family.
Hawaii – On May 2, Gov. Neil Abercrombie signed into a law an amendment to the state’s employment discrimination statute adding gender identity or expression as prohibited grounds for discrimination, making Hawaii the 13th state to ban such discrimination. Hawaiinewsnow.com, May 3.
Louisiana – The House Civil Law and Procedure Committee tabled consideration of H.B. 288 on May 23. The measure, advocated by House Democrat Helen Moreno, would have modified the state’s adoption law to allow unmarried same-sex adult couples to adopt children. Republican John Schroder proposed deferring any action on the bill, and nobody on the committee disagreed. New Orleans Times Picayune, May 24. * * * The House of Representatives voted 54-43 against H.B. 112, the Safe Schools Act, which was intended to address the problem of bullying in public schools. Most of the vocal opposition came from social conservatives who characterized the measure as intended “to promote an agenda and teach alternative lifestyles,” according to Rep. Alan Seabaugh, a Shreveport Republican who warned about exposing school boards to lawsuits and putting “books in elementary schools” that “you don’t want them to read.” Handouts were distributed to legislators by Rev. Gene Mills, head of the Louisiana Family Forum, that characterized the measure as the Homosexual Bullying Bill and urged its defeat. Louisiana law already prohibits physical bullying, but the unsuccessful measure would have expanded coverage to include offensive gestures or written, verbal or physical acts motivate by actual or perceived characteristics of the victim, including race, color, religion, ancestry, national origin, sexual orientation, gender, gender identity or expression, physical characteristic, political persuasion, mental disability, as well as attire or association with others indentified by such categories, according to a summary of the billpublished May 20 in the New Orleans Times Picayune. While they won’t say it, of course, some of the opponents of this measure believe very strongly that gay and trans kids deserve to be bullied because of their deviation from the “straight and narrow” life objectified by social and religious conservatives. Others, however, may have principled objections based on concerns about censorship and penalizing thought and speech.
Michigan – On May 6 the Michigan House approved an amendment to the state’s education budget that would penalize state institutions of higher education if they provided domestic partnership benefits to unmarried partners of their employees, whether same-sex or different-sex. The rationale of the Republican sponsor of the bill, Rep. Dave Agema of Greenville, was that such institutions were “skirting the law and the will of the people” by providing such benefits, in light of the state’s anti-marriage amendment. The state civil service commission had taken the position that providing such benefits did not violate the amendment, and the House Republican majority had not been able to amass sufficient votes to override the benefits on that basis, although the Senate did achieve a 2/3 disapproval majority with the support of ferociously anti-gay Gov. Rick Snyder. MichiganMessenger.com, May 13.
Minnesota – The Minnesota legislature has placed on the general election ballot for 2012 a proposed constitutional amendment modeled on California Proposition 8, that would provide that only the union of a one man and one woman would be valid or recognized as a marriage in Minnesota. The measure suffers from the identical federal constitutional faults identified by the U.S. District Court in San Francisco concerning the California proposition, and, if passed, would undoubtedly be immediately challenged by the American Foundation for Equal Rights, the organization that was formed to challenged Proposition 8. But gay rights activists in Minnesota were hopeful that by 2012, a determined opposition campaign will be able to beat the measure at the polls, having internalized the lessons from the unsuccessful campaign to block Proposition 8 and noting some local polls showing majority opposition to the measure. (However, polling also showed majority opposition to Proposition 8 at some points prior to that vote.)
Nevada – The legislature approved and the governor signed into law a measure that prohibits employers in the state from discriminating on the basis of gender identity or expression. The bill passed the Senate 11-10, after having passed the Assembly a month previously by a more substantial 29-13 margin. Governor Brian Sandoval signed it into law on May 24 and indicated he would be receptive to pending companion bills that would prohibit discrimination on the same grounds in public accommodations and housing. Nevada is the 14th state to ban such discrimination, immediately following Hawaii, which banned it earlier in the month (see above). Las Vegas Review-Journal, May 12; NatLawReview.com, May 24.
New York – Governor Andrew Cuomo ramped up the campaign for same-sex marriage in the state by announcing that he would personally lobby legislators and campaign around the state in support of the issue. The Democrats controlled both houses of the state legislature when a marriage equality bill failed in the Senate in 2009 after havig passed the Assembly several sessions in a row. This time around, the Republicans narrowly control the Senate and the Democratic majority in the Assembly was reduced as a result of the latest election, so passage in either house was not seen as a sure thing, but the factors most often cited for optimism included increasing majority support for marriage equality in state-wide polling, increasing media editorial support, and the personal commitment of the governor, whose popularity is soaring after the unusual achievement of an on-time state budget. On May 10, openly-gay State Assemblymember Daniel J. O’Donnell reintroduced the marriage equality bill in the Assembly, expressing optimism that despite the narrowed Democratic majority in that chamber, the measure would pass again. In the past, a handful of Assembly Republicans have voted for the bill. Governor Cuomo has stated that he does not favor bringing the measure to a vote in the Senate unless there are enough advance commitments to make passage likely, a departure from the strategy last time when activists pushed for a vote in order to get people on record. New York Times City Room Blog, May 10, and other media reports.
Rhode Island – Openly-gay House Speaker Gordon D. Fox, finding that there was insufficient support in the legislature to pass a same-sex marriage measure, pulled it from consideration. Instead, a civil union bill, HB 6103, was introduced by Rep. Peter J. Petrarca. Despite opposition from both some opponents of same-sex marriage and some marriage proponents in the Rhode Island LGBT community, this passed the House on May 19 by a vote of 62-11. One of the main obstacles to passage of a marriage bill had been the opposition of Senate President M. Teresa Paiva-Weed, who announced her support for a civil union measure. Despite continuing controversy about whether the LGBT community really wants a civil union measure to pass, the bill is expected to be approved by the Senate in June and signed into law by Governor Lincoln D. Chafee, a political independent who is a same-sex marriage supporter. Providence Journal Bulletin, May 20.
Tennessee – HB 600, a bill that would prohibit elementary and middle school teachers from discussing homosexuality with their students was on track for passage in the state Senate during May, but consideration in the House was put off until the next session due to the timing of introduction of the measure. House sponsor Rep. Bill Dunn (Republican – Knoxville) indicated that he had not pushed for committee consideration during this session because he is sponsoring several other controversial bills with higher priority. But Senate sponsor Stacey Campfield (Republican – Knoxville) insisted that he would seek floor consideration after the measure was approved in committee late in April. Knoxville News-Sentinel (April 30). As amended on the floor, the measure passed the Senate on May 12 in a form that appeared to restrict its application to sex education lessons, and to perhaps have the absurd effect of forbidding sex education classes from discussing such topics as in vitro fertilization or donor insemination procedures, since – in order to use euphemisms to conceal the blatantly anti-gay nature of the measure -- it states that lessons will be limited to “natural reproduction.” BNA Daily Labor Report, 96 DLR A-9 (May 19, 2011).
Tennessee - Reacting to the local passage by the Nashville and Davidson Metropolitan Council of an ordinance that required city contractors to follow the city’s rules against discrimination based on sexual orientation and gender identity, the state of Tennessee has enacted a statute, signed into law by Governor Bill Haslam on May 23, called the Equal Access to Interstate Commerce Act, which by amendment to Tenn. Code. Ann. Section 4-21-102 restricts the power of county and municipal governments in the state to outlaw any forms of discrimination that are not outlawed under state law. The law also adopts a definition of sex as male or female as indicated on an individual’s birth certificate. Since Tennessee state law does not ban sexual orientation and gender identity discrimination, this has the effect of invalidating the Nashville ordinance, and of precluding any local legislation protection LGBT people from discrimination.. The Tennessean, May 24, 2012; BNA Daily Labor Report, 100 DLR A-10 (2011). Although some have analogized this to Colorado Amendment 2, which was declared unconstitutional by the U.S. Supreme Court in Romer v. Evans in 1996, there is a significant distinction. The Colorado Amendment prohibited the state or any political subdivisions from protection gay people from discrimination; the Tennessee statute, by contrast, prohibits political subdivisions from enacting anti-discrimination rules that go beyond the categories enumerated in state law. As such, it serves as a limitation on home rule power, but would not preclude the Tennessee legislature from deciding to protect LGBT people on a state-wide basis in the future, and is thus much less “sweeping” than the Colorado measure invalidated in Romer. While the legislative history of the measure makes it vulnerable to an equal protection challenge under both the state and federal constitutions, the case for facial invalidity would probably be weak at best, and if it were evaluated under a rational basis standard, the articulated desire of state legislators to avoid subjecting businesses to varying anti-discrimination regimes within the state, articulated in the bill’s title, Equal Access to Intrastate Commerce Act. might suffice.
Texas – The Texas Senate unanimously approved an anti-bullying bill on May 23. The measure had already passed the House, which was expected to accept routine technical amendments and send the bill on to Gov. Rick Perry. The measure requires school districts to develop policies that prohibit bullying (including cyberbullying) and to establish counseling and intervention programs. The gay rights lobby in Texas, Equality Texas, made passage of this measure its top legislative priority for 2011. The governor’s response to the bill is not known. Fort Worth Star-Telegram, May 24.
Washington – The state enacted a new version of the Uniform Parentage Act, to take effect on July 22, 2011, that explicitly encompasses the registered domestic partners who are supposed to enjoy virtually all the rights of marriage under Washington law, but goes beyond such legally recognized statuses as registered partnership and marriage to provide that “a child born to parents who are not married to each other or in a domestic partnership with each other has the same rights under the law as a child born to parents who are married to each other or who are in a domestic partnership with each other.” Thus, a child’s right to a continued relationship with an adult partner of the child’s biological or adoptive parent would play into disputes parenting that could arise upon the termination of such adult relationships. The measure also modernizes provisions on donor insemination, and adopts presumption that persons in a domestic partnership are the parenst of a child born to one of the partners, and that persons who play the role of a parent for the first two years of a child’s life are also presumed to be a parent to the child. Thanks to Prof. Nancy Polikoff for bringing passage of this law to our attention. For more details, see her blog, beyondstraightandgaymarriage.blogspot.com (May 20).
The Tennessee Intrastate Commerce bill section 2 also removes existing protections in state law from intersexed and trans people. Until now, Tennessee courts have followed Federal Court ruling in that district that discrimination on the basis of sex also applies to discrimination against those who change sex, and those whose sex is indeterminate. The courts are now explicitly forbidden from following that interpretation.
It is difficult to see how this is relevant to the bill's ostensible purpose, to promote intrastate commerce. It is very obviously discriminatory in intent, and could be the bill's fatal weakness if challenged under Romer vs Evans.
Posted by: Zoe Brain | June 11, 2011 at 09:57 AM
Are there actual reported court decisions where Tennessee courts have construed the state's sex discrimination ban to apply to cases involving trans and intersex plaintiffs? I would not think that the new state law would affect that at all, since it is an interpretation of a category contained in state law, not an additional category.
Posted by: Art Leonard | June 11, 2011 at 01:46 PM