A second attempt to circumvent an anti-discrimination law — the policy protecting LGBT residents of Anchorage in the areas of housing, employment, and other ares — has surfaced. An application for a ballot initiative has been filed with the municipal clerk and will now go through a legal review.
The sponsor of the initiative is Kim Minnery — wife of Alaska Family Council (AFC) president Jim Minnery, who has fought anti-discrimination measures at the state and local level since Ordinance 64 in 2009. He also led the effort to defeat a 2012 ballot proposition with the same ends, and vocally opposed Ordinance 96, which for the first time codified equal protection laws in Alaska’s largest city.
The petition does not seek to repeal AO96 outright, instead bearing the title “Protect Our Privacy Initiative” and asking voters,
Shall the Anchorage Municipal Code be amended to: protect the privacy of citizens by requiring that certain restrooms and changing facilities in municipal buildings be designated for and used only by persons of the same sex; provide that private employers, public accommodations and other persons may lawfully choose to adopt sex-specific standards for restroom access, and dress and grooming policies; provide that no public accommodation may be forced to promote a message or expressive event with which the owner or operator disagrees; provide that employers, public accommodations and other persons may not be compelled to participate in certain activities that violate a sincerely held religious belief or moral conviction; and provide exemptions for religious organizations with respect to employment decisions and the provision of adoption services?
That seems like a lot to unpack, but it’s really just a lot of words to ask two things: a) Should citizens of Anchorage be allowed to use a restroom, locker room, or changing facility based only upon their biological sex as assigned at birth rather than according to their gender identity?; and, b) Should discrimination against LGBT residents only be afforded at the level of religious institutions in ministerial hiring or instead permitted as a legally sanctioned recourse to any individual who believes in the doctrinal interpretation that marriage is between one man and one woman?
Biological sex or gender identity or both?
The initiative would allow operators of establishments with gender-specific restrooms and changing rooms the ability to restrict use to patrons according to biological sex.
That’s the first part, and where the proposal immediately gets tricky.
The language’s provisions would empower operators to manage facility use based on “biological sex” and are hinged on the municipal code defining gender, which is in Title 5. The petition cites that the current definition for “sex” — located in muni code 5.20.010 — is “biological sex.” It is not.
AO96 added a new definition: Gender identity. It stipulates,
Gender identity means a person’s gender-related self-identity, as expressed in appearance or behavior, regardless of the person’s assigned sex at birth. A person’s gender identity may be established by evidence of medical history, care or treatment of the gender identity, consistent and uniform assertion of the gender identity, or other evidence that the gender identity is sincerely held, core to a person’s gender-related self-identity, and not being asserted for an improper purpose.
Thus, the crux of this portion of the initiative relies on a definition that is no longer in use by the municipality. “Biological sex” is not the determinate factor in gender identity and would make the bulk of the initiative’s bathroom restrictions unenforceable.
To address this, the language seeks to redefine the definition of “sex” — a term which, again, currently is not in Title 5 — to: “an individual’s immutable biological condition of being male or female, as objectively determined by anatomy and genetics at the time of birth. An individual’s original birth certificate may be relied upon as definitive evidence of the individual’s sex.”
This is problematic for one very specific reason: The initiative does not seek to repeal the gender identity clause, which fundamentally conflicts with the addition of the biological sex definition. Under those auspices, should the ballot measure pass, those enforcing its provisions on patrons using restroom and changing room facilities would be bound by two different standards, diametrically opposed to one other, in regards to how one establishes someone’s sex or gender identity.
The two dueling definitions cannot coexist. It’s one or the other.
The sponsors could have gotten around this by attempting to strike the gender identity clause, but that would likely have forced a title change in order to bring it into compliance with the muni’s criteria for petitions, established in Title 2 (2.50.020B3). Anchorage law requires that a proposed initiative must “set out verbatim the ordinance or resolution sought to be enacted or repealed by the petition.”
If the language aimed to remove the definition of gender identity, the petition would need to stipulate it was trying to repeal a core component of AO96. It still may be required to be rewritten to do so on other grounds.
Religious exemptions, or, who gets to discriminate?
The initiative also seeks to exponentially expand religious exemptions codifed in the anti-discrimination policies adopted in 2015. This, despite clear religious exemptions already existing in current law.
During deliberations over AO96, the Assembly included various carve outs as a compromise with faith organizations and religious rights advocacy groups. They were concessions that already did not sit well with proponents of the legislation.
One was a religious preference exemption, allowing religious organizations the right to prioritize employment of members of the faith over other applicants. Another was a ministerial exemption, which stems from a legal doctrine based on the Free Exercise and Establishment clauses of the First Amendment. The final version of AO96, authored by Assembly members Bill Evans and Patrick Flynn, sought to establish this exemption according to a 2012 U.S. Supreme Court decision in Hosanna-Tabor Evangelical Lutheran Church v Equal Employment Opportunity Commission.
The opinion, penned by Chief Justice John Roberts, ruled that anti-discrimination laws did not necessarily apply to employees of a religious organization who performed ministerial services as a regular part of their employment.
Finally, a third exemption clarified that no part of AO96 would violate the free speech and free exercise tenets contained in the Alaska and U.S. constitutions.
The new initiative wishes to broaden those rights so that neither religious organizations or individuals should be subject to anti-discrimination laws if of a nature that conflicts with their doctrinal interpretation. That would mean private business owners — the proverbial cake bakers and pizzeria owners — could potentially be able to deny services to LGBT patrons. No religious organization or individual who believes that marriage is between one man and one woman would be required to “help facilitate adoption services” either.
The additions included in the new proposal replace the religious preference with a wholesale religious opt out and broaden the definition from employment practices within a religious organization to the right to discriminate at the individual level, negating much of what the original anti-discrimination law was enacted to prevent.
The definition of “religious organization” defined in AO96, under the new proposal’s language, is no longer limited to a “bona fide religious or denominational institution, organization, corporation, association, educational institution, or society” (broad as that already is). Now, individuals could be recognized, as the proposed initiative expands the exemptions to include any
religious group, corporation, school or education institution, ministry, order, society, or any other entity that has a religious purpose, regardless of whether it is integrated or affiliated with a church or other house of worship… [including] an officer, owner, employee, manager, religious leader, clergy or minister of an entity or organization described in this subsection, when acting in their official capacity.
In other words, so long as sexual orientation and/or gender identity conflict with someone’s religious beliefs, the proposed initiative creates the potential for a return to legal discrimination.
Minnery defends bill by claiming a double standard.
In an email sent to the Alaska Family Council mailing list Wednesday morning, president Jim Minnery defended the proposed legal discrimination by pointing to the recent election of Donald Trump. He noted that multiple vendors had turned down invitations to participate in the inauguration. He wrote that the acceptance of this form of “discrimination” established a double standard.
There have been documented incidents of this, and judging by an illustration of dancers in the AFC email, we should broach the case of the Rockettes — some of whom objected to the group’s requirement that full time dancers perform at the presidential inauguration. As one member of the dance troupe told Marie Claire, under the pseudonym Mary,
In addition to the “trauma” Mary describes of performing for a president who has dishonored women countless times… there are other reasons certain Rockettes may feel strongly that dancing at the inauguration would go against their deep personal values: for the LGBT staff of the Rockettes’ show, and for “the few African-American women in the troupe who fear for their rights and their safety under an administration with reported white supremacists in its ranks” (and if they decline to perform, Mary says, the homogeneous whiteness of the dancers would probably be “embarrassing,” while the rest of the women would be “branded in history as one of those women… how’s it going to look?”)[.]
One might note that the objection of performing at an event based on fear of the “trauma” described above could be categorized as a bit different than the “trauma” experienced by someone sharing a bathroom with someone whose gender doesn’t align with their biological sex or “deeply held religious convictions.” It might be closer to the “trauma” experienced by being forced to show a bathroom attendant one’s birth certificate and told which bathroom they are lawfully obliged to use.
Additionally, there is a gulf between someone who consciously chooses to take a political action while cognizant of the possible repercussions versus an individual being restricted from using the restroom that corresponds with their gender identity.
“As far as I know, none of the vendors turning Trump down have faced even a hint of pushback — legally or otherwise,” Minnery countered to his followers. “And that is how it should be. It’s called living in a pluralistic society where we tolerate diversity. Not squelch it.”
As an alternative example, consider the case of Mormon Tabernacle Choir soprano Jan Chamberlin. When the Utah-based choir elected to perform at the inauguration, Chamberlin decided she could not, in good conscience, comply. But, countering Minnery’s accusation that it was vendors and groups discriminating against Trump, the five-year choir member and Utah County voice coach resigned under her own volition, saying that she wanted “to raise public awareness about what she sees as the incoming president’s lurking fascism and potential damage to her beloved chorus’s reputation.”
If we’re looking for equivalencies, it would not be cake bakers or wedding photographers suing over having to provide services to LGBT patrons; it would be them closing their own doors in support of their “deeply held religious convictions.”
Not the other way around.
Discrimination in privacy’s clothing.
This is the second attempt to repeal or at least water down AO96. The first run, which was an outright repeal effort, was denied certification because of a misleading title and a failure to clarify what an outright repeal would mean to those it would have affected, which would have been a deprivation of newly recognized equal rights protections.
The new initiative is couched in the expansion and strengthening of religious freedom and expression and privacy rights, but does not address the parallel deprivation of rights that would be imposed on the LGBT community. It is a hard pill to swallow that the premise of this proposal is rooted in protecting one’s privacy when it calls for invasive adjudication of bathroom access according to one’s privates and allows equal protection laws to be decided at the whims of the individual addressing them, whether that be renting a house, offering employment, or selling a cup of coffee.
Billing the new proposed initiative by advertising it as an expansion or restoration of rights, rather than more accurately acknowledging that one is attempting to displace and subdue the rights of another group, is nothing more than political convenience.
The municipal clerk has ten days to determine if the petition title and language meet the criteria established by the Anchorage Charter. If it does, official copies of the petition will be distributed to the sponsors and the signature gathering phase would commence. It would require a number of signatures equal to or more than ten percent of ballots cast in the last regular mayoral election (meaning the first election, not the run-off between Mayor Ethan Berkowitz and Assembly member Amy Demboski — an important distinction because the voter turnout in the regular election was 23 percent lower than in the run-off). That number stands at 5,754, which must be collected within 90 days in order for it to turn up on a ballot near you. The April 11 is 91 days away.