The city of Helena is poised to start the public-hearing process for a local anti-discrimination ordinance.
That simple sentence was 10 months in the making, but for some interested parties, it’s been more like decades.
The ordinance would make it illegal for people to discriminate against lesbian, gay, bisexual or transgender people in the areas of employment, housing and private accommodations. The Helena ordinance is in some ways just a focalized piece of a larger push by LGBT-rights advocates to gain protections similar to those offered to other classes of people that have historically faced private and institutional discrimination.
Much of the political wrangling, high rhetoric and sincere emotional appeals seen with this issue at the federal and state levels have also emerged so far in the local version of that process.
This is a story about that process.
Scholars tell us LGBT people have likely been around since the dawn of humankind, and in every culture. In that way, they constitute a minority population, but a ubiquitous minority. However, disdain for (or even discomfort with) that minority is not ubiquitous. Neither is the denial of their rights through laws. That’s one reason why conservative icon Barry Goldwater once said, “You don’t have to agree with it, but they have a constitutional right to be gay.” He recognized flimsy legal pretexts behind certain of our nation’s laws.
Take, for instance, the fact that Montana’s sodomy law was declared unconstitutional by the state’s high court in 1997, yet as recently as the 2011 legislative session, representatives on the House Judiciary Committee tabled a Senate bill that would have simply aligned the law with the high court’s decision.
When bill proponents tried to blast it out of committee, Rep. Ken Petersen (R-Billings) argued that the bill’s drafters had misinterpreted the court’s ruling. It was a hard line to swallow given the bill passed the Senate in a bi-partisan vote of 35-14, and even tougher since an important piece of Petersen’s own testimony seemed to run counter to his claim: “I pointed that out to the dean of the Montana Law School at the time … and he said, ‘Hmm. I guess you ought to read the case.’”
Another opponent, Rep. Michael More (R-Gallatin Gateway) didn’t even address the policy, but used his seat quite literally as a bully pulpit.
“I know it’s not vogue to quote scripture on the House floor, so I won’t do so,” he said, then offered a quick list of Biblical passages he found applicable. “That’s divine positive law. Does it have any basis in civil law? I think that’s the question here. How about natural law, man’s use of reason to understand reality and the world around him? Does that have any bearing on civil law? I would say that it does. What about eternal law, which is the way that all creatures propagate through the complimentarity [sic] of the sexes? Does that have any bearing on our civil law? I would suggest that it does.”
This wasn’t exactly an isolated event.
Parties on both sides of the aisle have proposed dozens of bills over the past couple decades that would have either increased protections for LGBT people or further restricted them. The political wrangling around such bills has resulted in hundreds of off-color comments, not just by people testifying but often by legislators themselves.
Here are just a few of note:
Many LGBT people have been isolated from their families, harassed, beaten and killed in America – specifically because of this one aspect of their being. That is an indisputable fact, and the reason civil-rights lobbyists have tried to add LGBT people to the list of classes explicitly protected under the federal Civil Rights Act of 1964. That list already includes things like race, color, religion, sex and national origin. But such efforts have been unsuccessful to date.
That means the most efficient method of extending protections to LGBT people has largely been off the table. So activists have fought tooth and nail against entrenched forces – sometimes in the face of violent opposition – just to establish what many consider a confusing and often contradictory patchwork of federal and state protections.
However, as noted above, Montana’s LGBT citizens and activists faced much obstinacy at the state level. So they brought a new – albeit less than ideal – tactic to Montana early in 2010: they started seeking protection at the municipal level. The tactic wasn’t unheard of elsewhere. Cities across the U.S. adopted similar ordinances, including Minneapolis as far back as the 1970s.
The Missoula City Council started hammering out the details of an ordinance that basically extended to LGBT people those protections similar to those offered protected classes in the Civil Rights Act, the protections that had proved elusive at other levels of government. The ordinance passed in April 2010. By October of that year, two lawsuits claiming the ordinance was illegal had failed in district court. But even that didn’t stop state-level opponents from trying to impose their contrarian will.
During the 2011 legislative session, Rep. Kris Hansen (R-Havre) sponsored a bill that would have nullified the Missoula ordinance and prevented other cities from enacting similar laws. (Someone unhappy with the proposed bill left threatening comments on Hansen’s voice mail, which received much news coverage.)
However, when the House bill came to the Senate floor, it was voted back to committee, where it died, by a vote of 44-4.
Missoula’s anti-discrimination ordinance had weathered a fairly severe storm and controversy.
In 2011, Katherine Haque-Hausrath was going around town, knocking on doors and asking people to vote her onto the city commission. One of her key platforms had to do with enacting a citywide anti-discrimination ordinance.
Appearing on Helena Civic Television, she explained it this way: “It would protect against discrimination in employment, in housing – whether it’s buying a house or renting a house – and in public accommodations … restaurants, bars, gas stations, any public area that basically sells to people.”
She told interviewer Valerie Hellerman that the public seemed to support the idea and that most were “flabbergasted that it isn’t already protected.”
Haque-Hausrath won the seat that summer.
During National Coming Out Week in October 2011, the Montana Human Rights Network sent out its first mailers to members, requesting support for the would-be ordinance. The card read in part, “We think that respect, dignity, fairness and security are Helena values and it’s time that our public policy matched those values.”
The comment board for a December 18 story in the Independent Record offered a glimpse into certain community members’ impulses. The more hostile comments were later removed for breaking the paper’s policy, but not before local blogger Don Pogreba was able to do some screen captures. One comment read in part, “i say shove them back into the closet where they belong and if not change Helena from the Queen City to the Queer City which will more accurately depict the environment. what’s next the mayor wanting to marry his poodle!”
Haque-Hausrath, who is also a Department of Environmental Quality attorney, spoke at her first commission meeting in January 2012 about her desire to get the ordinance on the schedule and make it a priority.
Going back over meeting minutes from those early months in 2012 shows no activity – at least public activity – on this issue, but a lot of activity on other issues like the budget. There were also several references to the fact that the City Attorney’s office was short-staffed. (At least a couple job postings appeared during that time for the lead attorney position.) Some took the delay for stalling.
That’s why 25 people – including two pastors – came forward at the March 12 commission meeting to urge them to move forward on the ordinance. Kim Abbott of the Montana Human Rights Network offered commissioners a stack of about 1,000 signatures from local people supporting the ordinance.
(This testimony was not part of a public hearing, though some later cried foul, arguing that open-meeting laws had been circumvented. Proponents had simply used a preexisting segment of commission meeting agenda titled “public communications,” in which members of the community can bring forth anything not on the agenda that they nonetheless want the mayor and commissioners to know about.)
The meeting also saw the first opponent raise what might be called “the bathroom question” – or the fear that predators will use public-accommodation laws as a shield of impunity to go in bathrooms and molest women or children.
During the public communications portion of the commission meeting two weeks later, four people spoke in opposition to the proposed ordinance.
Other opponents spoke with the Vigilante outside the commission chambers after the meeting. At first, most didn’t speak about their faith-based objections openly. But it soon became clear that it was central to their position. Most attended Last Chance Chapel on Birdseye Road. A few others belonged to the Church of Jesus Christ of Latter Day Saints.
One would have to be stupid not to notice the social rift with regard to religion.
But to be clear, the rift is not between LGBT activists and Christians. Plenty of LGBT people are Christians, and plenty of non-LGBT Christians have supported the ordinance during this process so far. For instance, Lyle Hamilton, a retired United Methodist Church pastor, spoke in support at two meetings. Reverend Robyn Morrison, of Church Within a Church, also came forward to support it at the March 12 meeting. If there is a theological rift on this issue, it is not between “a belief in God” and “a lack of belief in God,” but between the views of more progressive Christian sects and their evangelical or dominionist cousins.
For their part, the record shows the mayor and commission have not really entered into the theological debate. Their approach has been much more concerned with the nuts and bolts – that is, the word of municipal law.
The commission’s wrangling has been frustrating for many on both sides of the issue to watch. Some proponents have said they believe it is moving too slowly while others have expressed concern that it is moving ahead too quickly given uncertainties.
The most obvious issue slowing matters was that City Attorney Jeff Hindoien wasn’t hired until May. Things did, in fact, heat up after he moved into his office.
And by the time he did, MHRN had upped to about 3,000 the number of signatures on its petition.
On June 10, Commissioner Haque-Hausrath sent Hindoien, the mayor, commissioners and some members of the press an email with proposed draft language. At an administrative meeting on July 18, the commission looked at the draft. Hindoien asked for clarification about how the commission wanted him to proceed and they, in turn, asked him to help them understand some key elements.
For one, they wanted to know where he stood on enforcement issues. In other words, what part did he think the city should play if an act of such discrimination occurred. Hindoien was clear: “My preference, for what it’s worth, would be to utilize the Missoula method of private right to action.”
In other words, he didn’t think the city should be bringing cases forward to the courts on anyone’s behalf, but only providing the legal framework and infrastructure by which private citizens could do so.
This is an important distinction and speaks directly to why proponents brought forth the ordinance. Some opponents have argued that LGBT people already have legal protections and that such an ordinance would, in trying to create equality, give them rights others do not explicitly have – or as certain people like to say, “making some people more equal than others.”
Hindoien and Haque-Hausrath both explained that this was not an accurate depiction, since the ordinance specifies groups that are not currently protected. For instance, by law, people cannot be discriminated against because of their religion because that is an explicitly protected class identified in the Civil Rights Act of 1964 and in Montana Code Annotated Title 49.
Commissioner Dick Thweatt asked, “What type of evidence would it take to prove discrimination?”
Hindoien is in a particularly good position to answer such questions. He has actually defended against discrimination lawsuits. He said the plaintiff in such cases – the person against whom discrimination allegedly occurred – bears the burden of proof, adding that, “there is a well-established overlay for how discrimination cases get proved … and, to be honest, it’s a difficult framework.”
That framework would require not only proof that the plaintiff was denied employment, housing or access to public accommodations, but proof that the defendant discriminated against the plaintiff because they belonged to, or seemed to belong to, the protected class.
A hypothetical situation might go like this:
A gay man tries to get a Helena motel room for the night. The clerk refuses to give him a room. The gay man couldn’t just go to the court and say he was discriminated against and sue the motel under this ordinance. He would have to show proof that he was denied the room because the clerk had a personal prejudice against gay people. Such proof is difficult to find. But it does exist sometimes.
For instance, if the gay man recorded the clerk saying, “I don’t rent rooms to homosexuals and I think you are a homosexual,” that would be good evidence. Likewise, if the clerk rented a room to the next stereotypically straight man who walked in the door, and the clerk also had a sticker on his car featuring the stupid slogan “silly rabbit, d—s are for chicks,” one might be able to build a reasonably good case for discrimination.
No one really laid out such a hypothetical example, however, at least not at that meeting.
Hindoien asked for guidance about the ordinance’s scope. Specifically, he said Missoula’s ordinance included classes besides LGBT people, classes already protected by federal or state law, even though it only provided enforcement for LGBT discrimination cases.
“I’d lean toward a focused ordinance and I’m not real sure about the enforcement,” Mayor Jim Smith said.
He went on to say that, the way he’d heard it described, discrimination against LGBT people was similar to assault, and if that were the case he thought maybe the city ought to make a criminal offense and fine anyone found guilty and maybe put them in jail.
Haque-Hausrath said she was more comfortable with a civil private right to action.
Kim Abbott of MHRN addressed this issue during a brief comment period, saying her organization supported the ordinance but “we strongly oppose jail time as a penalty.”
Niki Zupanic of the Montana ACLU agreed.
(An important legal distinction is that, to find someone guilty in criminal court, the jury decision has to be unanimous, whereas in civil cases, one has to convince a majority. The argument for civil remedy is not simply that it is easier to prove, but that people who belong to protected classes often don’t get fair hearings precisely because a lot of people are prejudiced against people belonging to that class.)
Commissioner Dan Ellison spoke a few moments later, bringing up some of his concerns.
“My preference would be move to a resolution or a policy,” he said, explaining that the draft “left out many other behaviors, characteristics, and I can think of a long list of them.”
(A resolution would only be binding for city employees.)
“I would recommend that we expand it to include any number of other characteristics,” Ellison added, “so we don’t leave anyone out.”
Ellison’s next comments drew ire from ordinance supporters, and satire in this paper. He said a constituent had approached him and asked what kinds of protections there were for people who were bald or left-handed. The constituent was obviously suggesting that either the ordinance’s classes were too narrowly drawn or that the concerns of LGBT people were somehow overblown. But when Ellison spoke as his constituent’s proxy, the second interpretation drew more attention.
(Ellison later told the Vigilante that he was playing devil’s advocate, probing the question of which classes of people faced discrimination.)
“I think there are categories of people out in our community who would ask, “What about me?” Ellison said at the meeting.
He listed some other potential candidate groups: convicted felons, the obese, or veterans. Mayor Smith said, “I thought of people of short stature.”
There was also some question as to the inclusion of familial status in the draft. Smith told Haque-Hausrath he didn’t remember talking about previously about that class. Haque-Hausrath explained, as she already had in the draft attached to her initial email, that her research showed a gap in federal or state law. In essence, it was a way to say employers couldn’t refuse to hire someone simply because he or she had dependents.
Commissioners looked to Hindoien, who said, “It’s what I’d call a good catch.”
This was Haque-Hausrath’s logic: if the ordinance was intended to fill gaps in federal and state discrimination laws for classes of people who clearly had faced discrimination, then this was a natural addition.
Commissioner Dick Thweatt asked, “Can we treat discrimination generally?”
In essence, he was asking if an ordinance could be worded so as to identify any and all groups that faced discrimination without naming them – a sort of wide net.
Hindoien’s response, in a nutshell, was no.
By the end of the meeting, they urged Hindoien to proceed with the language allowing for private right of action and to do some more research about the concept of familial status.
At the September 5 administrative meeting, Hindoien presented the commission with a draft unchanged from July, which he said he intended to fine-tune by the September 24 city-commission meeting. He also said that, while the city might receive public comment suggesting the city didn’t have the authority to enact such an ordinance, he hadn’t seen anything he considered “a show stopper.”
Commissioner Ellison asked a series of questions that yielded the following information:
Familial status would apply not just to women who had or were expecting children, but to men as well.
The ordinance draft only applied to private schools because municipal governments are prohibited by state law from exercising power that affects the public-school system. The language, Hindoien said, simply mirrored that of the Montana Human Rights Act.
Nonprofits and religious organizations were exempt because municipal governments are prohibited from doing so for reasons similar to those he gave for public schools.
Ellison brought up another issue that has haunted the process since: the ordinance didn’t just protect members of the LGBT class, but also those who are perceived to be part of that class.
The process has showed that people aren’t quick to grasp this concept when stated as an abstraction, so here are the specifics.
The definition of the word “discrimination” in the September draft includes this wording: “any act, policy, or practice that has the effect of unfavorably subjecting any person to different or separate treatment on the basis of their actual or perceived sexual orientation or gender identity or expression …” (Emphasis added.)
That can’t be read alone or it is confusing. That’s why the legal definition of “perceived” also appeared in the draft as follows: “Refers to the perception of the actor, and not to the perception of the person for or against whom the action is taken.”
Attorneys are used to cobbling together definitions like this and being able to extrapolate hypothetical legal scenarios, so they often don’t quite get how lay people miss this stuff. But here’s the gist:
Remember the hypothetical example earlier in which the motel clerk denied a room to a gay man? Well, according to the ordinance language, the clerk doesn’t have to know for a fact that the man is gay. He just has to have discriminated based on his own (in this case mistaken) perception that the man is gay. In other words, maybe the man wasn’t gay, but was just effeminate and wearing a shirt with a rainbow on it. The ordinance essentially acknowledges the obvious fact that people often act badly based on assumptions, not on evidence. This is a pat concept of law. For instance, if someone refuses to hire the most qualified candidate because the person is in a wheelchair, it is still considered discrimination if the person was only using the wheelchair temporarily and, technically speaking, didn’t have a physical disability.
Hindoien preemptively addressed a related concern by saying, “The person who … is perceived to be part of that protected class, still has to come back and make that showing with a preponderance of evidence that, Hey, the reason that [you were] treated adversely … was because that person actually perceived you as being part of that classification. And in the grand scheme of things, that’s not an insignificant proof issue.”
Several community members on both sides of the issue offered comments, with proponents largely thanking the commission for its work and opponents making veiled disparaging comments about LGBT people or casting doubts on the ordinance’s legality.
Ken Milburn brought up “the bathroom question” and questioned the issue of perception thusly: “Anyone at any time and at any place and any time can perceive themselves to be anything. Whether it’s a member of the opposite sex, a donkey, a parakeet or an alien, are we now truly being discriminated against if they now perceive that somebody else is going to take a negative thought or action against them?”
As noted above, this isn’t how the word perception was used in the document, though it highlighted an obvious fact: lay people were missing the point.
Sharon Nason, who was one of the plaintiffs in the lawsuit against Helena School District over its sex-ed curriculum, said she thought these kinds of claims should go through the Human Rights Commission. Elsaesser and Hindoien later explained that the HRC and Montana Human Rights Bureau didn’t process claims of discrimination based on someone’s LGBT status. (Federal guidelines might be changing, however. More on that later.)
After public comment, Commissioner Elsaesser asked what Hindoien thought about a similar ordinance in Sand Point, Idaho that had a provision allowing for some type of mediation process prior to filing a claim.
“It was kind of going down a path that we don’t have the current resources or structure to do,” Hindoien said.
Commissioner Thweatt asked again about the burden of proof. As in the July meeting, Hindoien said the plaintiff had to prove discrimination occurred. Thweatt asked what damages guilty parties might be looking at. Hindoien said the maximum damage a municipal court could award was about $7,500, though claims of employment discrimination could also include lost wages, which could increase that number.
Haque-Hausrath said, “I would be happy to move forward with the draft as is,” then addressed in rapid-fire succession certain misperceptions:
Mayor Smith said, “I’m not ready to move forward with the draft as it is today,” he said, adding that he was “troubled by ‘the perceived.’”
“I am trying to process that,” he added.
He expressed concern that the ordinance was too much like the Missoula ordinance, that it borrowed language directly from it. He said vaguely that he had wanted something that was more typical of Helena.
About the familial status inclusion he said, “I don’t think that ought to be in there … I can’t offer a motion, but I’d be more comfortable if that was not in there.”
An interesting aspect of the City Commission is that the mayor runs the meetings and votes, but is prohibited by City Charter from offering motions. Here, his point was clear: if familial status stayed in there, maybe he wouldn’t support the ordinance.
Haque-Hausrath said she hadn’t tried to sneak familial status into the ordinance but had only added it because of her research, and that she was willing to take it out if it meant the ordinance might not pass.
Ellison said he wanted to keep talking to people about it and then said he wanted to know if there was actually a problem with this kind of discrimination in Helena. He said he had asked MHRN several months before if they could provide him with evidence, but hadn’t received anything specific to date.
The Vigilante obtained a copy of an email Kim Abbott of MHRN sent to the entire commission several days before this meeting that included a general explanation of why the protections were needed. Attached to the email was a 22-page affidavit Sen. Christine Kaufmann (D-Helena) drafted for an unrelated court case. Besides offering a timeline of LGBT discrimination in the state, it included descriptions of verbal and physical assaults perpetrated against gay and lesbian people in Helena. Ellison may not have seen the email or opened the attachment, but Abbott sent it in time for the meeting.
Haque-Hausrath tried to address Ellison’s and Smith’s concerns that the list excluded classes deserving of protection: “Physical disabilities are already covered, same with obesity. There are actually very few classes that should be covered that aren’t.”
The group decided to strike one basically inconsequential section from the draft and take up a new draft at another meeting.
In an interview afterward, when asked if he intended to prepare a list of other possible classes for inclusion in the ordinance, Ellison said, “I’m going to wait and see where this is.”
When asked if he believed LGBT people constituted a class of people deserving of protection – whether or not other people also deserved it – he said, “I’m not ready to say that.”
Ellison said some ordinance proponents had harassed him because they thought he wasn’t on board, but that he was still weighing evidence and thought the commission should be able to have an open discussion without being vilified.
“When we had a weed ordinance,” he said, “I could drive around and see the weeds. If this is the answer to a problem that is out there … I hope people come forward and tell us this has happened.”
At its October 10 business meeting, all the seats in the small meeting room were filled. Hindoien hadn’t brought a revised draft, but a memo that almost sunk the ordinance. The gist: that the state Human Rights Bureau planned to start hearing LGBT discrimination cases.
In April, the Equal Employment Opportunity Commission found in favor of a transgender woman who had been wrongfully denied employment after her soon-to-be employer found out she was transgender. In June, Tim Little of the Montana Department of Labor and Industry sent a memo to Marieke Beck of the Human Rights Bureau saying the EEOC’s decision on the Macy v. Holder case provided sufficient precedent for fielding similar cases in Montana.
“Would it preempt our ordinance?” Haque-Hausrath asked.
“I think it creates concerns for preemptions that weren’t there before,” Hindoien said.
Haque-Hausrath pressed, asking if it would still make sense to proceed with the ordinance anyway, just as a backup, since “we don’t actually have case law upholding [the HRB’s new interpretation].”
“I think that’s a fair characterization,” Hindoien said.
Smith asked Hindoien if this was similar to an attorney general’s decision, if it would be binding barring an act of the legislature.
“They’re going to pick up [Macy v. Holder] and carry forward at the Human Rights Bureau and use that as their yardstick for measuring claims and processing them unless and until a Department of Labor and Industries hearings officer in one of these cases says, ‘No, I don’t think that’s an accurate interpretation of the word sex for purposes of the Human Rights Act.”
Hindoien mentioned the Human Rights Commission, district courts, the Supreme Court or the legislature as groups that could potentially change it. Translation: this would be the law of the land until someone comes along and screws it up, and there are several spots along the way where they could potentially screw it up.
During public comment, MHRN spokesman Greer said as an LGBT-rights activist he hadn’t heard of anyone actually using this supposed new avenue, and urged the commission to move forward: “There is a lot of misinformation about what protections exist and I think part of that is lack of clarity and continuity and I’m hoping that is what this ordinance will provide. Having a rule that is set forth where the status that’s protected is clearly marked as sexual orientation, gender identity and gender expression is important because you can’t assert your rights if you don’t know what your rights are.”
Several people who had previously testified against the ordinance did so again.
Then a new face for the opposition, Jann Stewart, stood and identified herself as a marriage and family therapist. (Her website, healthysoulsofhelena.wordpress.org, clearly marks her as a counselor with an ideological agenda.Various portions of her site refer to her as a Christian counselor with a master’s degree from California Baptist University, and one sentence regarding her methods reads, “Constricting one’s world-view to comply with Scripture is paramount”). Here, Stewart started by saying she had treated people who had Gender Identity Disorder, a diagnosis many psychologists and psychiatrists have long criticized for being rooted in prejudicial and overly binary thinking and will, in fact, no longer appear as such in the next edition of the Diagnostic and Statistical Manual.
Here’s what Stewart had to say to the commission:
“I have concerns with that, with regard to someone being encouraged to open a discrimination case and – the treatment is successful and many times it is successful – being bound to a case can cause them to relapse … I don’t really see how that is helpful. Nor would I encourage someone in the peak of their suffering to proceed with something on impulse. It’s diagnosed at the same level as depression or an eating disorder. So therefore as depression we don’t encourage someone to impulsively cut on themselves or for an eating disorder for someone to not eat and so it doesn’t seem helpful to me with treatment, prior to treatment or with treatment in progress, something like this. My second concern is with regard to children and I don’t believe that this ordinance protects verbiage. I believe that a transgender person could possibly be allowed to speak to a child in a daycare setting or basically in any public setting where they have children and encourage a child to be confused about their identity. I would hate to pick up a grandchild from daycare only to find out that they had had this conversation and I would feel that I couldn’t say anything about it because then I would be criticizing and I don’t want to criticize anyone. I care about children. I care about patients and I care on all these levels and my goal is to help people, not to create a dissension or not to create one particular area where there is undue influence especially over children. Thank you.”
After some discussion among commissioners regarding the EEOC decision, Thweatt said what some of the other commissioners seemed to be thinking: “I guess I’m inclined to think that the concerns we’ve been trying to address through this ordinance are being addressed by this decision and I’m questioning if we’re going to move forward with this.”
Smith said he was thinking the same thing and called the EEOC decision a game changer, adding, “If I’m understanding this right, the goals of the people who are advocating our city ordinance are going to be met so long as this EEOC decision stands.”
“I would point out that we don’t even have one administrative decision that protects sexual orientation and I think that’s really important here,” Haque-Hausrath said.
“We have a staff person at the Human Rights Bureau who is interested in fairness like we are and would like to have it apply more broadly,” she continued, “but it doesn’t even mean we have a hearings officer who has said that it will apply more broadly. I appreciate their sentiment … but whether or not the hearings officer and the court agrees with them on sexual orientation, it’s an open question … and I’m not comfortable leaving it to some potential future department head [or] director as to whether or not this will continue. I honestly don’t think it’s enough protection.”
Smith, who as mayor runs meetings, was showing signs of weariness as the clock edged toward 6 o’clock, the scheduled ending time. He said, “I was ready to ride this out to its conclusion. But given the EEOC and the Montana Human Rights Bureau decision, I question the necessity for proceeding. I don’t know if or when this might be overturned by somebody but I’m willing to see what happens until such time as it is.”
Ellison said he hadn’t said much because he’d been trying to digest what he heard. He said he was reluctant to offer amendments because, like the mayor, he saw this as a game changer. So he wanted to hold off.
“Well, now it’s six o’clock,” Smith said.
At this point, it seemed like the whole thing was about to fail. But Smith proposed that all the commissioners talk to whoever they needed to talk to and do their research, “but when we come back in two weeks … let’s just decide this thing, let’s see if there’s three of us in favor or not in favor of moving forward.”
The room was even more packed at the next meeting on October 24. People, mostly proponents, were standing in every available space and overflowing out into the hallway. MHRN had spread the word that this was do-or-die time for the ordinance. Zupanic of the ACLU held the stack of more than 3,000 supporting signatures. Others were there to speak about the ordinance and to offer the kind of personal testimony certain members of the commission had asked for.
Haque-Hausrath had sought clarification from the Human Rights Bureau and the answer came back saying the bureau was going to pursue these types of discrimination cases, but, as Beck’s reply read, “The manner in which the Bureau interprets a law, regulation, or even federal guidance, is not binding. And further, arguments regarding the application of the federal guidance would be subject to multiple levels of review, including the administrative hearings bureau, the Human Rights Commission and the Montana judiciary.”
Two people – Ken Milburn and Sharon Nason – again spoke against the ordinance. Many more spoke in favor. Some of the comments addressed personal accounts of discrimination or the chilling effect of having no protections.
Teacher Sharla Crawford said, “I’m one of the main people who as a teenager left, because I didn’t feel safe here. I didn’t feel welcome. I didn’t feel like I had a place here and I left. Sure, I came back 20 years later, but as an adult. We’re losing our young people and I can say as a teacher that I have many gay and lesbian students who, as soon as they are handed their diplomas, are bolting. They don’t want to be here. It doesn’t feel safe for them.”
Other comments spoke to debate about the EEOC decision.
Teacher Katie Knight said, “I am very happy that you have gotten this far with it. Don’t back down. Don’t be intimidated and think that somebody else is going to do your job for you.”
Tara Veazey criticized the commission’s process: “I thoroughly respect and understand the difficulties involved in crafting new law,” she said, “but this body decided on January fourth to move forward with a draft and it’s been over 10 months … I respect that this might be a difficult decision for some of you … but the difficulty in the decision doesn’t justify a delay in making the decision. I don’t know the last time, if ever, 3,000 Helenans have come to you saying they wanted a change in the law – and 60 businesses have supported it.
“Let’s have a decision on this. Let’s have a debate on this. Let’s make the difficult decision that has to be made and, you know, you have to be held accountable for the decision you make. If you don’t want to vote for this, that’s OK. You don’t have to vote for it. That’s your prerogative. But you do have to be accountable to the people who voted you into office … This decision isn’t going to get easier with more time.”
After public comment, Smith again brought up the issue of “perceived status,” which had been struck from the draft. He said explanations he’d heard did not comfort him. Haque-Hausrath explained again and Thweatt asked Hindoien to explain the concept again. After the explanation, Thweatt said, “It seems to me that that’s an ineffectual aspect of the statute and that we can dispense with it. Is that a correct perception of ‘perceived?’”
By then, Hindoien and Haque-Hausrath had explained it several times each. They had used comparable examples from existing discrimination law (e.g., person A can’t discriminate against person B simply because person A assumes person B is disabled). They had also used hypothetical examples. Commissioner Thweatt had himself just articulated an example that aligned with their explanation. But something just wasn’t sticking about the way the definitions of “discrimination” and “perceived” worked together.
(They couldn’t have known it at the time, but as it turned out, there was actually a pretty good real-life example in the stack of written testimony they received that night at the meeting. In it, Helena school-board member Michael O’Neill described his experience at the 1995 gay-pride rally in Helena. He wasn’t gay, but that didn’t stop a group of men from calling him a “queer,” surrounding and threatening him. These were the same men many people had seen picketing the gay-pride parade, shouting epithets, holding anti-gay signs and even hurling eggs at participants. If the men had beaten him up, as they might have if a Samaritan hadn’t come to his aid, he probably could have made a strong case that they did so because they perceived him to be a member of the LGBT class.)
Toward the end of the meeting, Smith clearly expressed his fatigue when he said he wanted to wrap up this process ASAP.
“My interest was trying to finish this by December 31,” he said, “because come January second or third, I’m going to lose all interest. I mean, I’m just going to be preoccupied for four months.”
Besides being mayor, Smith is also a lobbyist, and January is when the 2012 legislative session begins. Many of the people in the room knew that, of course, so the comment raised a few eyebrows.
Commissioners discussed whether they should have a separate work session, talk about it at the next business meeting or move a draft to a public hearing. Hindoien said he believed he could take all the concerns he’d heard that night and get a draft ready for the public hearing. They talked about this for a while and, a few minutes after six, they asked Hindoien for one more draft before they started advertising for the public hearing.
However, Ellison will be out of town for most of November. And Smith had already said his deadline was the end of December. So that narrowed things down.
As of press time, unless some unforeseen force blows the whole thing off course, it looks like the local LGBT community’s odyssey could conclude sometime in December – at least this leg of it.
Note: The Vigilante had to send the file to the printer prior to the October 31 administrative meeting, so was unable to include the following information in the print edition.
The next time the commission met, it was Halloween, and Mayor Smith showed up in a Superman costume. He told people filling the room that he didn’t intend the costume to diminish the importance of the questions before the commission, then proceeded to run the most efficient discussion of the ordinance to date. Commissioners went through the draft before them methodically and addressed all the previous questions that had caused confusion. Haque-Hausrath offered new language so the concept behind the use of the word “perceived” might make more sense to lay people. No one objected.
Several people testified against the ordinance.
Barb Hamlin, one of the plaintiffs from the lawsuit against the school district for its sex-ed curriculum, said she didn’t want there to be discrimination.
Then she said, “Is it correct to assume that the religious liberty would be denied to a Christian, Jewish, Mormon or Islamic landlord who wouldn’t want to uphold this ordinance because of their religious or moral convictions. In other words, are we attempting to protect one select group which then causes discrimination against another?
“To me it’s an either-or. If I am a Christian or a Mormon or an Islam, and I say I have a place for rent, say in my home, I have rooms for rent, and I do not want, I do not believe in the lifestyle or for whatever reason, can I then say, ‘I’m sorry. I’ll find you something else where it’s not a conflict?’ No matter how much I stepped out to help find another, could something be brought against me because I decided that goes against my moral compass or my religious beliefs?”
Milburn spoke again, saying he thought this would increase conflict rather than diminish it. He cited a city in Kansas that imposed a similar ordinance that was subsequently challenged by a voter initiative.
“This is what it’s going to come to,” he said.
MHRN’s Greer again addressed the group:
“Every single person in this room has a gender identity. All of you have gender expression. All of you have a sexual orientation. All of you. This isn’t about segmenting anybody in our community. This isn’t about separating people or creating special groups of people. This is about protecting all people on the basis of sexual orientation, gender identity and gender expression. I don’t think I see this — and I think history doesn’t see it this way — that these sorts of laws are about taking away rights from anyone. Human rights and civil rights aren’t like pie that, when they are granted to one group of people, that person takes a piece of pie away from them and they don’t get to have it. That’s not how this works.”
The ordinance, as drafted, specifically defines sexual orientation in such a way that includes not just homosexual and bisexual people, but also the heterosexual population. Likewise, nothing in the wording suggests that gender identity and expression are exclusive protections for transgender people. What Greer was pointing out was that people opposing the ordinance might also find protection in it.