Over the past two years, many state and local jurisdictions have enacted laws making discrimination against trans individuals illegal. That’s the good news. The bad news is that those who would prefer to keep discrimination alive and kicking (not hard to figure out who these people are) have a new tactic; well, not really new, but one they’ve taken to exploiting as fully as possible. It’s the kind of effort one might describe as extreme, yet as many on the religious right have become desperate as they continue to lose the battle over hearts and minds. And we all know desperation foreshadows crazy tactics.
The idea they are utilizing is to walk back legislation. If a city or county passes anti-discrimination laws, then the state can countermand those laws by passing a bill which somehow supersedes the lesser jurisdiction’s ruling. Or, state’s courts can find the legislation unconstitutional.
As mentioned, this is not really new. The ballot iniative leading up to Romer v. Evans was a sort of precedent which right wing and fundamentalist groups and legislators are currently not hesitating to utilize. Colorado’s Amendment 2 was introduced in reaction to legislation passed by several local jurisdictions barring discrimination on the basis of sexual orientation.
According to Dr. Jillian Weiss, attorney, legal scholar and professor at Ramapo College, “in 1996, the U.S. Supreme Court heard a case involving a Colorado ballot initiative amending the Colorado Constitution ‘precluding any judicial, legislative, or executive action designed to protect persons from discrimination based on their‘ homosexual, lesbian, or bisexual orientation, conduct, practices or relationships.” The U.S. Supreme court held that this proposed amendment was unconstitutional.
Fifteen years hence, we’ve seen several attempts to undo legislation which seem to fall in the same bailiwick as Romer. Earlier this year, the city of Missoula, Mont., home of University of Montana, faced a challenge at the state level regarding anti-discrimination legislation it had enacted adding protections to its already existing laws for sexual orientation and gender identity. The state’s Republican legislature pitched a fierce battle to overturn the Missoula ordinance, but finally lost. It must be noted here, and in other instances of “walk back” legislation, that the concept of lower jurisdictional autonomy which the Republican Party continually espouses — their “smaller government” meme — makes a complete hypocrisy of this kind of government interference.
A similar, yet somehow different, scenario played out in Maine over the past few months. Based on a Maine Human Rights Commission finding, Orono, Maine, public schools had allowed a trans teen to use a gender appropriate bathroom in school. LD 1046 would have mandated that this student would have to use a bathroom which not only did not match her gender presentation, but which ultimately would have been potentially dangerous for her. Her other choice was to use a private bathroom which would serve to ostracize her from the other students. Furthermore, as reported in the Lewiston Sun, LD 1046 “would have prevented transgender individuals from filing complaints against schools and other public institutions for restricting access to bathrooms and locker rooms.” Fortunately, LD 1046 failed, 61-81.
This brings us to Tennessee and SB 632/HB 600. This bill was introduced, and eventually passed, as a response to a Nashville city ordinance preventing businesses with city contracts from discriminating against its LGBT employees. A few weeks ago, Tennessee Gov. Bill Haslam signed the bill into law, thereby undoing Nashville’s protections. But, that wasn’t the entire substance of SB 632/HB 600, which now effectively precludes local Tennessee jurisdictions from passing any anti-discrimination ordinance which is not fully aligned with State of Tennessee law as already written.
Advocacy groups are weighing in. Chris Sanders of the Tennessee Equality Project released the following statement: “We are disappointed that the majority in the General Assembly and the Governor have given their assent to SB632/HB600, which overturns a Metro non-discrimination ordinance, prevents any city or county in Tennessee from adopting a similar law, and redefines ‘sex’ in the Tennessee code to the detriment of transgender people. You can’t create jobs by allowing discrimination. And you can’t say you’re for smaller government when you take away the power of citizens to determine how their local tax dollars are used in government contracting. All Tennesseans deserve to be free of job discrimination based on sexual orientation and gender identity, and we will continue to work toward that goal.”
Efforts to thwart this de-evolutionary effort include lawsuits aimed at challenging the constitutionality/legality of SB632/HB600. Former director of Lambda Legal, Abby Rubenfeld, has joined with several other attorneys to bring suit against the state’s passage of this heinous legislation. State Sen. Jim Kyle has also proposed a bill that would reverse the legislature’s reversal of Nashville’s non-discrimination ordinance, according to blogger Chas Sisk of The Tennessean.
I will refer you to Dr. Weiss’ insightful interpretation which makes the case for why SB632/HB600 is unconstitutional. Read the whole piece at bilerico.com/2011/05/tennessee_bill_to_ban_local_lgbt_non-discriminatio.php.
She writes, “the key issue in terms of the constitutionality of SB 632 is whether its denial of rights to any groups outside of the approved state list has a rational relation to some legitimate state interest.” Tangentially is the issue of neutrality and how and why the bill was crafted and its intent, which was obviously targeted against the trans community. Within the language of the bill is a definition of sex which is blatantly discriminatory.
“‘Sex’ means and refers only to the designation of an individual person as male or female as indicated on the individual’s birth certificate,” Weiss writes.
Of course, the possibility exists that challenges to SB632/HB600 may exceed the ability of Tennessee to adjudicate and will end up in federal court. And, given the nature and composition of the Sixth District, as well as the U.S. Supreme court, there are hardly any guarantees regarding the disposition of laws states undertake to pass whose intent is to undermine equality in a way which seem to defy established law. : :
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