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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.

Sunday, December 3, 2006

Lansing, Michigan considers gender identity proposal

Nearly 200 people packed Lansing's City Council chambers on November 21 to voice their opinions about the city's human rights proposal, which would supplement the city's existing statute to prohibit harassment and discrimination based on gender identity and sexual orientation, as well as student and marital status.

According to the Lansing State Journal, people on both sides of the issue spoke "passionately" about the ramifications of the ordinance, with most speaking in favor of the ordinance. [9 spoke against, 21 people spoke in favor] The eight-member council is expected to pass it unanimously Dec. 11. Mayor Virg Bernero said at the meeting that he fully supports the proposal. The measure, however, is similar to one passed by the City Council in 1996 that later was voted down by residents.

As I've noted before, officials in cities with close connections to international business tend to favor expanding human rights laws because they are believed to bring job growth. Lansing is the capital of Michigan, with a population of 120,000 and a metro area population of 460,000 as of the 2000 census. It is an important center for manufacturing, educational, cultural, and governmental institutions, including three medical schools, two law schools, a Big Ten Conference university (Michigan State), and headquarters of four national insurance companies, including Fortune 500 insurer Auto-Owners Insurance.

I've discussed the tie-in with the "Florida theory" before. It's also called the 3T's formula, which stands for Technology, Talent and Tolerance (Florida 2003). The GLBT population is seen, 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 was named as number 2 on Harvard Business Review's list of breakthrough ideas for 2004. (Richard Florida Creativity Group2004)

Interestingly, Councilwoman Kathie Dunbar, a proponent of the measure, cited the Florida theory as an important reason for passage, though not by name. Dunbar alluded to this when she said that the new ordinance will help make Lansing an "epicenter for a diverse, culturally literate population that makes up what we would consider a cool city." "We want to move this city forward — we want to bring technology, innovation and creativity downtown," she said. "You can’t do that unless you have a diversity of viewpoints. You don’t get that unless you protect the diversity of your citizens." Mayor Virg Bernero echoed Dunbar’s sentiments.

There has been a lot of movement on gender identity issues in Michigan lately. The Sixth Circuit Court of Appeals, which has interpreted the Civil Rights Act of 1964's ban on sex discrimination to include dismissal because of transgender status, covers Michigan (as well as Kentucky, Ohio and Tennessee). Therefore, it is currently a violation of federal law to discriminate on the basis of gender identity in Michigan. Other Michigan cities with policies including gender identity include Ann Arbor, Dearborn Heights, East Lansing, Grand Rapids, Huntington Woods, Kalamazoo and Ypsilanti. (I note that Dearborn Heights isn't listed in the HRC database, but it does have such an ordinance. Fair warning for journalists: HRC's databases are useful, but not the last word because no one seems to be updating them.) Major employers based in Michigan that include protection of gender identity in their policies include Borders Group, DaimlerChrysler, Dow Chemical, Ford Motor, General Motors, Valassis Communications, Visteon, Volkwagen of America, and Whirlpool.

Not all is sunshine in Lansing, however. There is a controversy among proponents of the measure. The measure specifically states in its definition of gender identity that it is permissible to restrict the use of restrooms, locker rooms, dressing rooms and health clubs on the basis of sex. Since Michigan law (like the law of every other state in the US) is unclear about when, if ever, I can change my sex, even after surgery, and for what purposes, this could permit requiring all transgender persons to use the facilities of their birth sex.

In an article on the issue, some proponents said that the ordinance determines sex by what is listed on his or her driver's license. This requirement doesn't show up in the text of the ordinance that I've seen, but it may be in a different draft. However, it's interesting to see what people's reactions are. Cindy Redman, a lesbian who serves on the Lansing Association for Human Rights' board, said at a recent Council committee meeting that she doesn't want to shower with anyone with a penis. "If they still have a penis, they're going to be identified as man," she said.

But the article notes that the National Gay and Lesbian Task Force in Washington said allowing discrimination on the basis of sex is unfair to transgender persons. "The requirement of state issued identification may interfere with the ability of transgender people to use the facility that matches their gender identity," Kara Suffrendini, legislative lawyer for the National Gay and Lesbian Task Force, wrote to Councilwoman Kathie Dunbar, who crafted the ordinance.
According to Suffrendini, the five Michigan cities with laws on the books protecting transgender people — Ann Arbor, Grand Rapids, East Lansing, Huntington Woods and Ypsilanti — do not require them to "prove their sex using state-issued identification." Suffrendini said using driver's licenses as proof of sex would be "inconsistent with the social and medical consensus that transgender people should be granted access to bathrooms and other facilities based on their identity, not their surgical status." Dunbar said that aspect will be discussed as the final language is drafted prior to the Council's vote. "There is a contention that until you've had that surgery, the state does not recognize you as the opposite sex to which you're transitioning."

As it turns out, the Michigan Secretary of State does have a policy regarding gender marker changes on drivers' licenses and state IDs, where it only permits a gender marker change if the person has completed sexual reassignment surgery. Last year, the Michigan ACLU was successfully able to persuade the Secretary of State's office to go back to its old policy, which did not require sex reassignment surgery. However, this success lasted about two weeks, when complaints from groups like the American Family Association caused the Secretary of State's office to revert to its surgery requirement. (Click here for the Michigan ACLU brochure on transgender issues in Michigan)

The AFA has, in fact, started a campaign against this ordinance as well. According to an article in LSJ, Gary Glenn, president of the American Family Association of Michigan, said he is forming a coalition to start a voter referendum to overturn the ordinance after its expected passage on Dec. 11. Glenn and his group would have 30 days after the ordinance is passed to gather signatures from 4,371 registered Lansing voters. The battle looks uphill, however. Two years ago, the heavily Democratic city was one of only a handful of cities to vote against the gay marriage ban. Glenn sent out a mass e-mail to Lansing-area church leaders last Thursday, urging them to come and testify, but only nine people spoke in opposition, and several of them were Council "regulars." In contrast, 21 people spoke in favor of the ordinance.

The AFA website contains talking points for those who would campaign against the ordinance. Interestingly, the talking point include this fun fact: "The effects of this provision are so radical that even Democratic Congressman Barney Frank of Massachusetts, the leading homosexual activist in Congress, refuses to include the 'gender identity and expression' language in his federal 'gay rights' legislation…"

It should be noted, however, that Representative Frank has since revised his views, and a federal bill including gender identity has been introduced under his sponsorship.

1 comment:

Dr. Jillian Todd Weiss said...

There are 34 Fortune 500 companies headquartered in Michigan: General Motors, Ford Motor, Dow Chemical, Delphi, Lear, Visteon, Pulte Homes, Whirlpool,
Masco, TRW Automotive Holdings, United Auto Group, Kellogg, ArvinMeritor, DTE Energy, CMS Energy, Federal-Mogul, Kelly Services, Auto-Owners
Insurance, Stryker, BorgWarner, Borders Group, Comerica, Tower Automotive, Novi, American Axle & Mfg., Universal Forest Prods., Steelcase, Hayes
Lemmerz, Dura Automotive Systems, Metaldyne, La-Z-Boy, Spartan Stores, Tecumseh Products, Herman Miller, and Domino's Pizza