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Tuesday, July 18, 2006

City vs. State Statutes on Gender Identity

A recent article in the Fort Wayne, Indiana News Sentinel brings up another interesting question about city statutes purporting to outlaw employment discrimination based on gender identity and sexual orientation. A comment from a reader who is also a law professor also brings up the same issue. (It's always nice to hear from fans.)

What's the issue? The issue is that some state constitutions prohibit local authorities from passing laws on subjects already addressed by the state legislature. For example, if the state passes a law saying that liquor stores must be closed on Sunday, the local ordinance can't say that it's okay for its liquor stores to be open on Sunday. But the city could add its own regulations about taverns. This issue is called "state pre-emption."

This raises the question about anti-discrimination ordinances. Can the city add "gender identity" or "sexual orientation" to the local anti-discrimination ordinance, even though the state anti-discrimination statute does not include it?

The News Sentinel article opines that the question is a "gray area" in Indiana law making it "unclear whether a local government has the authority to act in this area." The article quotes general law to the effect that "if the state has staked out some legislative territory, it is clear that local units of governments can't venture off on their own." It notes that there was a controversy among the South Bend legislators as to whether "under our home rule provisions cities and counties are perfectly free to go beyond the state's protected classes." The article's analysis of law is, however, quite general and does not give any insight on the question of what courts will actually do.

Interestingly, the Fort Wayne, Indiana human rights ordinance is mentioned as a contrast to the proposed South Bend legislation. Because of these concerns about state pre-emption, the Fort Wayne statute regarding sexual orientation discrimination was specifically limited to "voluntary investigations and voluntary mediations."

In a recent comment to this blog, a law professor reader who styles himself "rightwingprof" said, in response to the ordinance recently passed in Bloomington, Indiana:
"And the state supreme court will strike it down, as they did before, because you cannot legally go beyond the state constitution in Indiana. It's called feel-good legislation, instead of actually doing something, and in a town with next to no economy because of the moonbats in office. Also known as wasting taxpayer money."

This would be a good point, except for the fact that it cannot be said with such assurance what a court will do on this issue. In Hartman v. City of Allentown, 880 A.2d 737 (Pa.Cmwlth. 2005), for example, the same issue was raised, and the Pennsylvania appeals court said that Allentown's statute protecting gender identity and sexual orientation was A-OK. But Pennsylvania isn't Indiana, and my internet connection that would allow me to check more on Indiana cases is intermittent, so who knows.

As an interesting sideshow, the article contains an off-the-wall comment from a local law professor:

"The South Bend bill was so vaguely worded, Charles Rice, Notre Dame Law School professor emeritus, wrote for the Tribuen, that it would extend protection to all the possible varieties of gender identity and sexual orientation, 'including not only GLBT, but also relations amounting in effect to polygamy (one husband, multiple wives), polyandry (one wife, multiple husbands), polyamory (three or more partners where all have sexual relations with all the others)** and, of course, bestiality.'"

Of course. However, the interpretation of Professor Rice does not seem to be borne out by the text of the proposed amendment before the South Bend Common Council:

"(w) 'Gender identity' means an individual having or being perceived as having a gender related self-identity, self-image, appearance, expression or behavior different from those characteristics traditionally associated with the individual's assigned sex at birth.

(x) 'sexual orientation' means an individual's actual or perceived identity or practice as a lesbian woman, gay male, bisexual person or heterosexual person."

Professor Rice fails to explain how any of these phrases that could be interpreted by anyone, let alone a court, even one in Indiana, to refer to polygamy or bestiality. Reminds me of a phrase by Dostoevsky: "If he were no philosopher, he was at least the cause of philosophy in others."

** I note that his definition of polyamory is incorrect.

1 comment:

Dr. Jillian Todd Weiss said...

In researching this further, I began to wonder why the pre-emption argument doesn't occur on the federal level. After all, Congress has passed a non-discrimination act that doesn't include sexual orienation and gender identity. Does this pre-empt the state civil rights acts that include sexual orientation and gender identity and other categories? If anyone has any info, let me know.