Welcome! To read each post in full, click on the post title.

This is not legal advice, which can only be given by an attorney admitted to practice law in your jurisdiction after hearing all of the facts and circumstances in a particular case.

Wednesday, July 12, 2006

South Bend IN mayor suggests executive order

In light of the defeat of the proposed ordinance to ban discrimination based on gender identity and sexual orientation, Mayor Stephen Luecke has promised an executive order adding sexual orientation and gender identity to the city's Equal Employment Opportunity policy, which will protect city workers from discrimination.

The reasoning behind this is instructive from a business point of view. "Having these protections in place would have provided South Bend with a valuable tool to attract and retain the best possible employees to work in local businesses and corporations," said Randy Studt of Lafayette's Citizens for Civil Rights. "South Bend has to compete with regional communities of similar size for businesses and jobs, many of which already adopted similar workplace protections."

These communities are Bloomington and Indianapolis, which prohibit discrimination in housing, employment, and public accommodations based on sexual orientation and gender identity.

This comment tracks a point made in my dissertation, that cities adopting gender identity ordinances are responding to concerns about urban revitalization and attracting business to the city:

Public employers adopting transgender HR policies show similar patterns. Non-discrimination policies are viewed as a means of attracting a highly educated labor force, a larger business tax base and a more affluent population. This is referred to as the 3T’s formula, which stands for Technology, Talent and Tolerance (Florida 2003). The gay population has been used, in this connection, as a measure of the “creative class” within geographic areas and as part of an index to determine their attractiveness to high-tech businesses. The creator of this index, Dr. Richard Florida of Carnegie Mellon University, is a sought-after lecturer and consultant for cities seeking to revitalize, and his theory is named as number 2 on Harvard Business Review’s list of breakthrough ideas for 2004. (Richard Florida Creativity Group

The interviews with town officials adopting such ordinances illustrates the point. [Codes are used intead of names to preserve confidentiality of respondents.]

The town of BNO adopted a proposal including "gender identity" in its human relations ordinance in May, 2002, affecting both municipal and private employees. The ordinance was not adopted in response to specific concerns about any transgender employees. In fact, there are no known transgender employees for the municipality, and "gender identity" was not the primary focus of the policy adoption in this case. It was added as an afterthought to a proposal to add "sexual orientation" to the human relations ordinance, at the request of two gay organizations supporting the "sexual orientation" proposal. These organizations provided the language used in the ordinance, and it was apparently used without change from the original. Its
benefits are perceived as being a "benchmark for major employers" and making a
"statement" to national and international employers and their employees at a
time when some employers are leaving the area.

The policy has been heralded to the local gay community. However, while there is some talk of sending a bulletin to major employers, they are waiting until the election cycle is over. While the language adopted included a definition of gender identity, the definition itself is a bit confusing, and the meaning is unclear to the person who has the job of enforcing it, particularly with regard to bathrooms and crossdressing.

There were disagreements before the ordinance was adopted as to what situations
it might cover, but there was no resolution of these issues. In fact, after the human relations ordinance was amended, it was not perceived to be necessary to take the official step of including it in the administrative personnel policy of the municipality. However, it has been added to the EEO statement included on publications and job advertisements. The only concern expressed about the policy is its vagueness and the need for testing in the courts.

There was opposition to the proposal generally, but the opponents did not perceive gender identity as different in any important way from sexual orientation, and the opposition was primarily against adding sexual orientation. He disparaged the opposition as religious fanatics. In fact, the proposal was a bipartisan effort, and the person who shepherded the proposal through the council was a conservative Republican, who did so because this was "one of the Mayor's issues."

The small town of OJ is an old town, settled in the early 1700s. The town's main business now is its shopping and tourism industries. It now attracts many to shop for antiques, art, crafts and curios, and has "bed and breakfast" inns, fine dining, and a nearby vinyard. It has 200 art galleries. It conducts historical tours, boat rides on the nearby river, and carriage rides. It also has symphony, ballet, theater and other
cultural landmarks not found in the larger surrounding area. It is generally
considered a very tolerant place, and has many gay residents. It boasts that it
offers its visitors the experience of escape into the arts.

The respondent explicitly stated that the town did not need this policy, as there is no discrimination against gay people in the town, and a number of town officials
are gay. Rather, he viewed as a "political statement" designed to hold the town up as a model of tolerance to the rest of the state. This tolerance was viewed as attracting business to the town in the form of shopping tourists.

A public official in another city had similar thoughts:

R: Well I think it's showing that it is an inclusive place for employees and we believe that over time it will bring businesses here because there is going to be a more diverse, more open workforce in the area…One of the reasons it did pass unanimously, and we did have some of the businesses step in and say, y'know this is important to us, we've been (inaudible). Just last month, um we had the city council pass an ordinance adopting the state's first ever domestic partner registry. Besides passing unanimously with no discussion whatsoever on the floor when it came to a vote, because we had kinda y'know really worked out (inaudible), we had letters of support from the major businesses in town, not only the larger employers but then also from some of the more, the smaller yet more powerful or influential businesses as well, and there was absolutely no problem, all of the council, and we do have a partisan council, some democrats and some republicans, and it went through absolutely, with great support.

As a matter of fact, it was originally, a draft was approved, back in May, and
the only comments that were made were several of the council persons felt it was
necessary to speak out in support to get it onto the record.

The clearest statement was by this respondent from QJL:

R: And you know what? That brings people into the city…to live, I mean, not as tourists…Look, we have gay people living and thriving here, who feel comfortable opening up businesses, buying houses, raising families …all of the economic benefits. I mean the gay and lesbian community in the city has grown to be that part of the city that is the most adventuresome in terms of rehab-ing neighborhoods, and not without controversy, because it means moving people out. But at any rate rehab-ing
neighborhoods, opening up businesses, I suspect without knowing that half the new restaurants in the city, it's like the eating capital of the east coast now, are owned by, by typically, gay men, I mean, these are the guys opening up restaurants, and so if that brings money into the city, we have an active gay tourist bureau in the city, and gay people come to the city that have money, so they're spending money, raising revenues, paying my salary, which for my grandchildren is very important. So the overall economic benefit to the city is anytime you have a situation where you broaden the number of people who feel comfortable living and working and doing business in the city, the more people are going to be living and working and doing business in the city. Simple as that.

Interestingly, the needs spoken of by these respondents are not the needs of transgender employees, but needs of the employers themselves. The interviews suggest that the policies are intended to benefit employers by conferring a legitimacy that, among private employers, serves recruitment and retention of non-transgender employees, and among public employers, serves to create an environment that attracts an educated labor force, the businesses that require them, and the money that will hopefully follow. The needs of transgender employees are secondary.

No comments: