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Friday, May 19, 2006

News: Vermont Veto Correction

I stand corrected. Yesterday I reported on the Vermont veto, and noted that the text of the bill I was looking at (from the website of RU12?, the Vermont advocacy group supporting the bill), contained no definition, an unusual omission. A reader sent the following comment:

"The link to the bill text that you gave is incorrect. You linked to the bill text as originally proposed (H.0478); the text of the bill as passed by the House and Senate (renamed H.0865) is found at the following address: http://www.leg.state.vt.us/docs/legdoc.cfm?URL=/docs/2006/bills/passed/H-865.HTM. The definition of the term "gender identity or expression" is found at the beginning of the bill in Section 1. "

And so it is.

Section 1. "The term 'gender identity or expression' means an individual's actual or perceived gender-related identity, appearance, expression, or behavior, regardless of the individual's assigned sex at birth."

This is a fairly standard definition, as I've noted in previous posts. As noted in my post yesterday, the question to address is why the Governor of Vermont felt that "It would be inappropriate and unfair to every employer, landlord, provider of public accommodation, lender and school to put a law on the books that creates new obligations and liabilities while many who would advise them are struggling with the bill's terms and scope."

I had thought that the absence of a definition might explain the struggle, but that is obviously not the issue. Its scope is the same as Vermont's existing anti-discrimination law, as the bill does nothing more than add "gender identity or expression" to the list of "race, color, creed," etc. There is a little more information in this morning's news reports, however. Specifically, that on May 17, the Vermont Human Rights Commission voted 4-1 against the legislation.

The Governor weighed that veto heavily, according to a story from WCAX TV noting the importance of the fact that "lawyers from the Human Rights Commission recommended against approving this bill and that's the agency of state government responsible for enforcing complaints of discrimination." It seems that the Governor's concern about the confusion of "those who would advise" is based on the Commission's vote. It is not surprising that the Governor deferred to the agency which is supposed to provide expertise on the issue.

The Vermont Attorney General is quoted in the story as saying "There wasn't a reason, in our view, why the bill should be vetoed for reasons of uncertainty in the law." It's also interesting to note that one Vermont Human Rights Commissioner has resigned in protest.

According to the story, "The Governor is not inalterably opposed to the bill. He says he merely wants lawmakers to take more time with it and rewrite it to eliminate the problems he's identified." The question is what problems those might be. In a post last week, I noted some of the questions raised by the Governor: how law enforcement would be permitted to do a search for someone in the midst of a gender change; whether new restroom or housing facilities would be needed for transgendered people in state prisons; and whether private employers face new liability.

The first two questions are interesting (though perhaps moot, given that authorities already have strategies to address these issues), but the only question relevant to this HR blog is the last. The answer to the question of whether private employers in Vermont face new liability seems to be in the negative. The Governor said that existing Vermont laws already cover transgender employees, and that, in fact, the attorney general's office has filed two transgender discrimination complaints. From this, it seems that the bill would have affirmed existing protections, so that there would not have been new liability for private employers.

The importance of this story is that it confirms that the addition of gender identity to laws and policies raises many questions, so that employers who add it should be thoughtful about the process and address foreseeable issues in advance. I think it important to note, however, that the nature of these questions is primarily social, rather than legal. Anti-discrimination laws and the EEO policies that track them have been on the books in the US since the Civil Rights Act of 1964. Most of the legal questions about anti-discrimination laws were ironed out decades ago.

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