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Tuesday, April 10, 2007

Oregon Gender Identity Bill

Oregon’s legislation SB2, which would prohibit employment discrimination based on gender identity and sexual orientation, had hearings yesterday before the Oregon House Elections, Ethics and Rules Committee. Here’s the audio online.

The Eugene Register-Guard said that the hearings drew hundreds of people to the Capitol. Most of the crowd spilled out into five overflow rooms or the Capitol's galleria. The Register-Guard noted that religious conservatives testifying against the bill zeroed in on the concern that anti-discrimination legislation would inadequately safeguard religious organizations' rights to refuse jobs to people because of their sexual orientation.

From Autumn Sandeen at Pam's House Blend, March 16:

"And, over in Oregon, a bill to add sexual orientation and gender identity to the books for employment, housing, and public accommodations passed out of committee 3-1, and is now heading toward that State Senate's floor. In 2005, a similar bill -- coupled with a provision for civil unions -- passed through the state senate, but died in a house committee without ever getting a hearing. With both Oregon houses now controlled by Democrats, chances are considered significant for the bill to reach actually reach the Governor's desk." The bill is now being reviewed by a House committee, which will decide whether it should go to a vote of the full House. Governor Kulongoski has indicated he will sign the bill if the House passes it.

The bill includes the standard anti-discrimination provisions of most similar bills. From The Oregonian:

“The bill would prohibit discrimination based on sexual orientation in housing, workplace and public places. It would provide the authority to seek, through civil court action, actual and punitive damages and attorneys' fees for unlawful discrimination. It would require state agencies to eliminate discrimination against persons based on sexual orientation.

Here’s the text of SB2.

The bill is supported by local businesses. From The Oregonian: Eleven Oregon business executives urged legislators in a letter to support the bill. Among them were Julia Brim-Edwards, public affairs director for Nike Inc.; Malia H. Wasson, president of U.S. Bank; Peter Bragdon, vice president and general counsel for Columbia Sportswear; and Peggy Fowler, president and CEO of PGE.

Interesting factoids:

1) Oregon state regulations currently say that an “employer may not refuse to hire or promote or bar or discharge from employment or discriminate in compensation, terms, conditions or privileges of employment because a person is transsexual when the person is otherwise qualified.” OR. ADMIN. R. 839-006-0206. [See comments for text of the reg]

2) SB2 contains a specific provision explicitly exempting religious groups.

3) From blogger Chewin On Glass: Oregon has two openly gay justices on the state supreme court.

Oregon cities and counties with gender identity protections:

Beaverton, Bend, Benton County, Corvallis, Hillsboro, Lake Oswego, Lincoln City, Multnomah County, Portland, and Salem,

There is one company in Oregon with a policy that includes gender identity: Nike

There are 3 other Fortune 1000 companies in Oregon would be affected: Precision Castparts, Lithia Motors, and StanCorp Financial.

Arguments Against the Bill

The opposition to the bill is organized and fierce. Interestingly, the main focus of controversy is sexual orientation, with much less concern about gender identity. This is interesting in light of the arguments within the GLBT community about the federal ENDA bill. Some gay advocates, such as Chris Crain, oppose inclusion of gender identity in the federal bill because of fears that gender identity is much more controversial than sexual orientation. As it appears, however, there is plenty of controversy about sexual orientation, and not much about gender identity as a separate category.

Representative Dennis Richardson says that he opposes the bill because, in his view, sexual orientation and gender identity are "behavior-based activities" that should not be elevated to the same status as race and religion by the granting of civil rights. This argument is just silly. Religion is obviously a "behavior-based activity," freely chosen by individuals based on belief. It is not something we are born into, like race or national origin. There is no logical basis for an argument that being gay or transgender is a "lifestyle choice" but religion is not. There is also some evidence that sexual orientation and gender identity are influenced by biology, but I have no opinion one way or the other on the matter. My identity does not need such justifications. Autumn Sandeen has an interesting post on this issue, as well.

Richardson specifically notes that he believes in constitutional protection against discrimination and that individuals should have the right to live their own lives with a minimum of interference, but says he is unwilling to use the force of governmental power to protect sexual orientation and gender identity from the beliefs of religious Oregonians.

This argument has some flaws. First, it has long been recognized that using state court doctrines to enforce discriminatory contracts is, in fact, state action, which violates the US Constitution’s Fourteenth Amendment requiring equal protection of the laws. The same would seem to be true of the employment at will doctrine. The idea that this governmental force is used to legitimize unequal protection based on religious beliefs raises First Amendment questions.

Another problem with Representative Richardson’s argument is that the bill contains an exemption for religious organizations, so that churches opposed to GLBT identities will not be forced to abandon their religious beliefs in the operation of their churches.

From The Oregonian: “The bill allows religious groups to discriminate against hiring or housing gays or permitting them to use their facilities. Still, senators opposing the bill objected to a provision that says religious groups can discriminate only for activities connected to the "primary purpose of the church or institution" and not for commercial activities, such as running an apartment house or restaurant. The courts would be deciding a church's primary purpose, they said....Proponents said the bill's religious exemption was carefully crafted, supported by many religious groups, including Ecumenical Ministries of Oregon, a statewide association of 16 denominations. What's more, they said, it was unnecessary, given religious protections already provided by the state and federal constitutions. They also argued that the bill does not give special or minority status to gays and lesbians, nor does it make curriculum requirements of schools.

From Gay Rights Watch: Senate Bill 2, DOES NOT as The Oregon Family Council claims, creates new language in statute "leaving it up to a court to decide what is or is not 'closely connected with the primary purposes of the church.'" This exact language already exists in Oregon's current anti-discrimination statute (ORS 659A.006, Section 2, Sub C).

Gay Opinion Blog has a well-written column by a gay pastor on the other side of the religious issue. Reverend Wes Mullins, assistant pastor at the Metropolitan Community Church of Portland, argues that assertions that religious institutions will not be properly protected is simply a smoke-screen designed to obscure what is truly motivating opponents' actions -- fear of gay, lesbian, bisexual, and transgender (GLBT) persons.

A truly startling argument is the one made by Sen. Bruce Starr, R-Hillsboro, who questioned whether gays and lesbians encounter discrimination in work and housing. As a group, they earn more, are better educated and live in better homes on average, he said. Given recent national publicity to the events in Largo, Florida, this position is surprising. However, it is interesting how many times I have seen this issue raised. When I was an educated middle-class white man, I also wondered “what discrimination???” when people of color, women and others raised the issue. From Oregon Public Broadcasting: Asling Coughlin, executive director of Basic Rights Oregon: "You know, we've heard testimony from people who have been fired from their jobs and denied accomadation based on their sexual orientation. And unfortunately in 2007 it's still prevalent. And we like to think that one case of discrimination is one too many and unfortunately there are definitely more than one case."

Senator Starr’s argument is undercut by the prejudice displayed in the fierce opposition to the bill. From The Portland Mercury, regarding the initial hearings: [T]hose who were opposing the bill—many at the behest of the conservative Oregon Family Council (OFC)—unwittingly did a better job of making the case for the anti-discrimination law, by trotting out thinly veiled insults against gays and citing "evidence" that homosexuality is immoral, "harmful," and "destructive." Others made outlandish and baseless claims that gays have a life expectancy of around 40 years, and that gays are "17 times more likely" to be sexual predators....Other opponents of the bill—like former State Senator Charles Starr—claimed the bill might lead to reverse discrimination, by oppressing anti-gay Christians."To say that [gays'] sex acts are unhealthy or against nature would bring forth outright suppression of biblical truths," Starr said. Another man testifying later in the afternoon claimed the law would "criminalize the Christian worldview that simply wants to state that it's okay to believe that a certain lifestyle choice is immoral."

Regarding the “special rights” argument that is so perennially popular in these debates: The bill’s opponents don’t seem to realize that the creation of “protected classes” comes from the need to overcome the “employment at will” doctrine of American law, which has always been openly acknowledged by all as a discriminatory device, and not from any desire to create “special rights.” From Oregon Public Broadcasting: Roseburg Republican Jeff Kruse was among those voting against Senate Bill 2. He said he doesn't favor discrimination. But he said he believed the bill is a foothold for what he called mandating certain types of education in schools. Jeff Kruse: "Mr. President. If I had my way, I would take all the discrimination language we have in statute, eliminate it all, as say Thou Shalt Not Discriminate and be done with it, because that's truly how I think it should be." Representative Kruse’s position clearly comes from a misunderstanding of the law.

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