Tomorrow, Anchorage will once again traverse the treacherous path of enacting an equal protection law to protect LGBT residents from discrimination. Three proposed bills, all variations of the same singular concept, will be wrapped into one agenda item which the public will be allowed to weigh in on, beginning tomorrow night. Here is a sectional analysis of those proposals, with my added commentary.
The initial proposal is Ordinance 96, offered by Assembly member Bill Evans. The second was a substitute version — Ordinance 96(S) — offered by Assembly member Patrick Flynn. Ordinance 96(S-1) is a compromise bill hammered out by both Evans and Flynn.
Section 2 of each proposal attempts to define “gender identity,” one’s personal experience of one’s own gender. In past attempts, both legislatively and by ballot initiative, gender identity has been featured prominently, mostly by those opposed to equal protection laws who have, with some success, sought to portray Alaska’s transgender community as predatory bathroom lurkers who change their gender intermittently while threatening our children’s public safety.
In reality, some people do not identify with the gender they were assigned at birth, and are simply trying to use the restroom where they feel comfortable. But to separate the scary, fictional, cartoon, transvestite children-stalkers from average folks just trying to pee, a working definition for what gender identity means is important. All three bills attempt to do so.
Both AO96(S) and AO96(S-1) try to define gender identity as broadly — and yet specifically — as possible, requiring consistency in that gender expression and a requirement that it is not used improperly. This is to appease those concerned about people abusing bathroom accommodations. Evans’ original bill defines it more ambiguously, which isn’t a bad thing either. The most important part is that the law allows for people to use public facilities which match their gender identity.
Section 9 attempts to spell out what renters, employers, and other actors can do pertaining to houses, workplace accommodations, etc. The focus here is, again, to try and set up reasonable definitions for workplace attire and use of restrooms, locker rooms, and other places that are typically gender-segregated for purposes of privacy.
They all say various iterations of the same thing, which depend on what definition of gender identity is ultimately chosen to dictate these further provisions. All versions of the ordinance essentially hold that if your gender identity is male, you are entitled to use the men’s room only, and visa versa if you identify as female. But you can’t switch it up. Because that’s not how gender identity works.
Evans’ original version and the compromise S-1 version go on to specify that schools, workplaces, etc. won’t have to foot the bill for special-use restrooms as a result of the bill’s enactment, which shouldn’t be an issue if we, again, can get past the whole predatory bathroom scandal nonsense.
Let the people pee.
And we move on to Section 9B2.
9B2 ensures that employers are allowed to enforce dress codes and other standard workplace requirements, so long as they comfortably allow for gender identity — meaning you can’t tell a transgender woman to dress like a man and, conversely, a transgender man can’t dress as a woman one day and a man the next.
As transphobic opponents of equal protection laws are wont to misunderstand, gender identity is just that — an identity. It is not gender roll playing, or gender opportunism. It is who you are, and should be respected in workplace and housing accordingly. The above provisions are meant to protect gender expression, but also provide that people can’t take advantage of them for nefarious or other purposes.
Let the people be.
And the final subsection of Section 9:
Evans’ bill reiterated subsection 2’s requirement that gender identity be consistent. But it also creates some legal muckittydo (a legal term). How does one make sure one retains a consistent gender presentation in the workplace?
The Alaska State Legislature requires women to wear “a blazer, sweater set, pantsuit, skirt and blouse, or a dress.” Men are restricted to “a suit jacket, dress shirt, dark trousers, and a tie (this includes bolo ties).”
So, what if a woman gets coffee spilled on her dress and a coworker allows her to borrow some dress pants? IS SHE A MAN?!
The definition set out in 9B2 already contends that reasonable dress requirements are acceptable, and that they must be consistent. That makes 9B3 redundant. Best to scrub any legal ambiguity.
Controversy this way comes. Section 10 addresses religious exemptions and exceptions. Here’s 10A, which deals with a “religious preference exception.”
Basically, religious entities can hire people best suited, according to their own judgment, to hire who they best think would fit that religious entities’ doctrinal beliefs. But the original language, offered by Evans, states that no religious entities shall be forced to violate their religious interpretations in hiring or accommodations. That’s a substantial amount of interpretation-based wiggle room which would potentially create very difficult situations — balancing equal rights laws and doctrinal interpretations — for a body deliberating fair-versus-unfair workplace practices, like the Equal Rights Commission, to offer judgments.
Both substitute versions offer identical language that maintains the original intent, but sets up some clear parameters by deleting the wiggle room. Religious entities may offer preferential treatment to applicants who best align with their doctrinal interpretations. But the buck stops there. They are otherwise adherent to the same anti-discrimination laws that everyone else is.
In 10C, we can chose between an exemption or an exception as it relates to ministerial positions.
This is a question regarding how far religious exemptions/exceptions should go.
As an example, the Anchorage Baptist Temple has ministries for everything. There’s a Men’s Ministry, Women’s Ministry, Worship Music Ministry, Bus Ministry, a Taekwondo Ministry, and many more. Pastor Jerry Prevo would like those who facilitate those ministries as employees of ABT to be exempt from equal protection laws, so that they can discriminate against LGBT residents of the municipality as they see fit. This past Sunday, he complained that the law, as written, would mean he might be forced to hire a math teacher who is gay.
The horror, and such.
The difference between the proposed ordinances has to do with a single word, and a third option as compromise between them.
Evans broadly allowed for an exemption for any employees of a religious entity whose “primary duties” consist of religious purposes. This could translate, in anti-discrimination cases, as a large umbrella that includes bus drivers, taekwondo instructors, and math teachers.
Flynn’s updated version (S) stipulates that it allows the enjoyment of only those with “substantial duties” to teach religion, meaning someone might ask, “What is the relationship between a bus driver and religion as it pertains to the children he is paid to drive to school?”
It’s a really good question.
The third option offered strips the provision of both the “primary” and “substantial” qualifiers. That grants a whole new gray area and is dumb.
But the most problematic menu item is in the original proposal for Section 10, subsection C: The religious conscience exemption.
“The intent of that particular exemption was basically just to prevent those cases that we’ve heard about recently, of people — you know, bakers, photographers being the most — being compelled by their job to attend same sex weddings,” he said.
Rather than question why bakers and photographers should be allowed to sell their services to one group of people and yet not another — which, he acknowledged, his bill wouldn’t sanction, I raised my main concern. In 2009, numerous Anchorage residents testified to being pressured, harassed, or fired by employers simply by having a picture of their partner on their work desk, or having them stop by work to bring them chicken noodle soup.
To me, that could fall into a category of an observance that is in conflict with their religious beliefs.
Evans seemed a bit taken aback, and said that was never his intent; that he wanted his bill to ensure people felt safe in their place of employment.
Thus, it’s not surprising that in the third version of the bill, that provision is gone. It was weakly constructed and gave entirely too much gray area. It should stay gone. It needs to stay gone.
Section 12 was deleted in both substitute versions, and is doubtful to resurface.
So, here we are.
And with that, I’ll see you all at the Assembly chambers tonight.