Organization Day at the statehouse came and went without too much to talk about on the surface. Legislators gathered to prepare for the upcoming legislative session that begins January 5. Freedom Indiana and supporters of non-discrimination laws for the state’s LGBT community rallied in front of the senate’s chambers on the third floor. The group also delivered 5,000 letters from Hoosiers informing Governor Pence and state legislators of the need for sexual orientation and gender identity to be added to Indiana’s civil rights law.
Indiana Senate Republicans also presented their version of the civil rights bill that would add sexual orientation, gender identity and veteran status as protected classes in Indiana. Senate Bill 100, authored by Senator Travis Holdeman, R- Markle, is anything but “four words and a comma.” In 21 pages the bill manages to loosely offer civil rights protections while keeping the LGBT community back in the “second class citizen” category. It also attempts to override any progress made in local communities.
In order to make sure I was interpreting the legislation correctly, I enlisted the assistance of two Indianapolis attorneys. Bill Groth and Karen Celestino-Horesman are both well versed in constitutional law, having represented the state’s police officers and firefighters in the marriage equality case. After reading Senate bill 100, both agree it contains nuggets that should give every Hoosier pause.
The problems with the proposed legislation start at the very beginning. In Section 2, it states:
The provisions in this chapter and IC 22-9.5 enacted in SEA 100-2016 and the repeal of IC 22-2-16-4 by SEA100-2016 are the result of the general assembly's balancing of differing religious values and matters of conscience so that individuals of good faith can live and work together without undue litigation or burden. The exemptions to this chapter and IC 22-9.5 related to or affecting sexual orientation and gender identity are to be liberally construed.
Never before has civil rights legislation begun with an “explainer clause” as if apologizing in advance to the people who may disagree with it — or in this case the ultra conservative right.
“That is a telling omission,” says Groth. “As it seems the sponsor is more concerned with protecting those who may be charged with discrimination than the alleged victims of that discrimination.”
Section goes on, with some redundancy, to explain definitions and provisions of what can and cannot be considered grounds for cause and subsequent disciplinary action. Trying to summarize what it says is just as confusing as the actual language, which Horseman believes may be the point.
“The provision requires a showing of intention which, under these circumstances, would be hard to prove short of an express statement of intent,” says Horesman. “But a non-lawyer would not know that so I would guess the point of the provision is to scare people away from filing a complaint of discrimination.”
This section also tries to reinforce what is already guaranteed in the U.S. and Indiana Constitutions — the rights of clergy and churches to deny services to those who are not in agreement with their teachings. In other words, if a pastor doesn’t want to marry a same sex couple, then they are not obligated to do so.
“Including the language about clergy not being required to perform same sex marriages is also unnecessary and a red flag,” says Groth. “Since the state couldn’t interfere with a church’s or clergy member’s doctrinal views without violating the broad protections of religious freedom in the religion clauses of the Indiana Constitution. Not to mention the Free Exercise Clause of the First Amendment which would prevent the State or any political subdivision from compelling clergy to marry anyone if contrary to their religious beliefs or principles.”
The provisions give more specifics of what cannot be considered a discriminatory practice rather than what would constitute discrimination. Specifics are given in regards to bathroom accommodations and employee dress codes. It also requires the attorney general to defend school boards and charter schools in cases where those entities are defendants in a discrimination complaint.
Within some of the added definitions is one for gender identity. The way in which the definition is written shows a blatant misunderstanding of what gender identity really means. The legislation reads as follows:
Gender identity" means a person's gender-related identity, appearance, or behavior: (1) whether or not that gender-related identity, appearance, or behavior is different from that traditionally associated with the person's physiology or assigned sex at birth; and (2) that can be shown by providing:
(A) medical history, care, or treatment of the gender-related identity occurring in the period of twelve (12) months preceding the act or omission that is the subject of a complaint under this chapter; or (B) consistent and uniform assertion of the gender-related identity in the period of twelve (12) months preceding the act or omission that is the subject of a complaint under this chapter, if the assertion is sincerely held, part of the individual's core identity, and not being asserted for an improper purpose.
So, does this definition state that gender identity is a medical condition that can lead to deviant behavior? And what proof is needed and why?
Groth says the definition is over-the-top and demeaning to transgender persons. Horseman agrees and questions the 12-month “gap” that could leave a transgender person susceptible to discrimination without justice.
“The HRC [Human Rights Commission] defines gender identity as ‘One's innermost concept of self as male, female, a blend of both or neither – how individuals perceive themselves and what they call themselves. One's gender identity can be the same or different from their sex assigned at birth,’’’ quotes Horesman. “This statute defines it as ‘a person's gender-related identity, appearance, or behavior.’ If you have been medically treated for 12 months for your ‘gender identity’ or have lived that gender identity for 12 months, then you are accorded limited civil rights protections. I guess this means that for the first 365 days, you are fair target for any discriminatory treatment anyone wants to hand-out to you. Someone should tell Senator Holdman that gender identity is not medically treated.”
If the definitions meant to protect those who could be accused of discrimination weren’t bad enough, the proposal seeks to punish someone who makes an accusation of discrimination that is found to be unjust. Section 7 reads:
The commission may impose a civil penalty on a person, not to exceed one thousand dollars ($1,000), if the person files a complaint with the commission under this article or IC 22-9.5 that the commission determines is:
(1) frivolous; and
(2) intended to harm the subject of the complaint.
The civil rights commission, a seven-member panel appointed by the governor, investigates discrimination complaints. Currently, the commission can find probable cause, which determines if there is enough evidence to support reasonable suspicion that civil rights law has been violated. If no probably cause is found, the case is dismissed and all parties move on. This new clause in section 7 would penalize the victim of the commission determines that individual doesn’t really have a case.
“I have never seen an anti-discrimination bill provide that persons who file complaints with the ICRC subject themselves to a $1,000 fine if the complaint is determined to be ‘frivolous’, a term which is undefined and therefore completely subjective,” says Groth. “And how can the Commission determine whether the filing was ‘intended to harm’ the subject? What can that possibly mean? This is not part of the current Civil Rights Code and appears to be limited to complaints filed over sexual orientation discrimination but not to other types of discrimination. It assuredly will and is no doubt meant to discourage the filing of discrimination complaints by GLBT persons.”
The piece of the bill that should capture the attention of every mayor and city councilor in Indianapolis, South Bend, Carmel, Columbus, Bloomington, Lafayette and every other city that has a civil rights ordinance on the books, is in Section 10.
An ordinance may not establish requirements that are more stringent or otherwise are in conflict with any of the provisions of this chapter article and IC 22-9.5. A political subdivision does not have any other home rule powers to establish requirements related to equal opportunity for education, employment, access to public conveniences and accommodations or acquisition through purchase or rental of real property, including housing, or to eliminate segregation or separation, based solely based on race, religion, color, sex, disability, national origin, sexual orientation, gender identity, active duty status, veteran status, or ancestry that are more stringent or otherwise are in conflict with this article and IC 22-9.5. Any ordinance, resolution, regulation, standard, or other legal action by a county, city, town, or other political subdivision is preempted to the extent that it is more stringent or otherwise conflicts with this article and IC22-9.5.
So, local ordinances like the one in Carmel — which contains a monetary penalty for those found in violation — would be null and void because it is more stringent than state law. Any ordinance that states a person who files a complaint cannot be penalized or retaliated against would be in direct conflict of Section 7 and would also be null and void. State law would overrule local representation.
Groth and Horseman agree that Senate Bill 100 is overrun with unnecessary language and irrelevant material that do more harm than good.
"As an ally of the LGBT community and as a lawyer, I would rather see nothing pass the Indiana legislature then this bill with its express provisions allowing discrimination against Hoosiers on the basis of sexual orientation and gender identity,” says Horsemen. “The legislature should either extend full civil rights to the LGBT community or it should do nothing. Any halfway measure is unacceptable."
Only time will tell if this or any other civil rights legislation will pass next year.