In a legal opinion issued Friday, April 21, Anchorage Municipal Attorney William Falsey recommended certification of a ballot initiative petition application aimed at allowing the restriction of bathroom and locker room access according to sex assigned at birth, rather than one’s gender identity.
The switch to provide for such access according to gender identity changed when Anchorage passed Ordinance 96 (AO96) in September of 2015.
AO96 was a sweeping piece of legislation updating the municipality’s antidiscrimination laws to include LGBTQ residents of Alaska’s largest city. Among the provisions adopted, gender identity was defined as “a person’s gender-related self-identity, as expressed in appearance or behavior, regardless of the person’s sex assigned at birth.”
In mid-November of that year, Jim Minnery, president of the far-right advocacy group Alaska Family Council/Action (AFC/A), told attendants of the organization’s annual dinner that he wasn’t ready to “throw in the towel” yet.
Two weeks later, former radio talk show host and AFC/A surrogate, Bernadette Wilson, introduced the first challenge to the law, applying for a referendum on the entirety of AO96. That failed to pass the criteria established by the Anchorage Charter on requirements for initiatives and referendums, said Falsey.
“Within a few weeks, Alaska Family Action will be submitting to the Municipal Attorney significant amendments to Ordinance 96 as a citywide initiative,” Minnery responded in an email blast last March. “While not fully repealing the misguided law, our intent is to bring back balance and create equal protections for people of faith who want to live and work in the public marketplace without fear of governmental intrusion and legal intimidation. It’s time for the pendulum to swing back our way.”
He added that AFC/A was enlisting the help of David Sears, president and chief counsel for the Alliance Defending Freedom (ADF), a conservative, Christian, nonprofit that litigates cases involving religious freedom, access to abortion, marriage equality, and antidiscrimination laws.
In January, 2017, the AFC/A president’s wife, Kim Minnery, introduced a second attempt to roll back AO96, entitled the “Protect Our Privacy” initiative. Once again, Falsey was asked to review the application and recommend if it met the requirements to be submitted to voters.
“Subject to the following discussion, our brief answer is no,” Falsey replied. “The Anchorage Municipal Code mandates that initiative petitions may address only ‘a single subject.’ … No single subject unifies the various, disparate components of the law sought to be initiated by petition 2017-1.”
Kim Minnery resubmitted a third application for petition on the topic February 18. The language adopted Falsey’s recommendations and honed in on bathroom and locker room facility access, asking,
Shall the Anchorage Municipal Code be amended to: protect the privacy of citizens by requiring that certain intimate facilities such as locker rooms, showers, changing rooms, and restrooms within municipal buildings be designated for and used only be persons of the same sex; and provide that private employers, public accommodations and other persons may lawfully choose to designate intimate facilities for use only by persons of the same sex?
The petition, if it were to garner the necessary signatures and end up on a ballot then approved by voters, would redefine “sex” to mean “an individual’s immutable biological condition of being male or female, as objectively determined by anatomy and genetics at the time of birth.” This could be verified and regulated by private and public officials overseeing activities in such venues according to an individual’s original birth certificate.
Falsey says the narrowing of subject matter accords it the chance to go through that process, saying the “brief answer” to whether or not it could be brought in front of voters, “is yes.”
However, in his opinion he noted, “The measure proposed in the application raises a number of significant legal and constitutional questions[.]”
We do not conclude that the measure proposed in the application would be lawful if adopted by voters. We conclude only that it comports with the limited requirements of Anchorage Municipal Code 2.50.020B.: the measure does not concern a subject-matter prohibited by the Alaska Constitution or the Anchorage Municipal Charter; the measure addresses only a single subject; the measure is legislative, rather than administrative in nature; controlling authority does not clearly preclude the enforcement of the measure as a matter of law; and we cannot, at this time, conclude that the measure is “clearly unconstitutional.”
Whenever an application for an initiative or referendum is received by the municipal clerk’s office, it has 30 days in which legal counsel can review the submitted application and recommend whether or not it should be certified or denied according to the regulations laid out in municipal code. This does not include a review of the application’s constitutionality under local or state law. Thus, the noted caveats by Falsey.
The application submitted by Minnery satisfied the requirements of attaining basic information: that of two primary contact people, 10 qualified voters serving as sponsors, and whether or not it passed the basic test of clearing municipal code. This third attempt checked all applicable boxes. It does not, in other words, “run afoul of the restrictions set out in the Anchorage Municipal Charter,” Falsey wrote.
It also, by narrowing the scope to bathroom access, does not violate the Anchorage Charter’s single-subject rule mandating that an initiative or referendum be isolated to one topic.
But Falsey entered the policy realm of “in the weeds” when he addressed the enforceability of such a law, should it clear nearly certain judicial challenges and arrive on next year’s municipal ballot.
He noted that the proposal “prompts a number of practical enforcement concerns.”
“It is not clear how the municipality, practically, could assess a person’s ‘anatomy and genetics at the time of birth,'” Falsey wrote. “Individuals do not commonly carry copies of their ‘original birth certificate.’ Further, in many cases, it will simply not be obvious that a person is aiming to use a sex-designated facility that does not correspond with their sex at birth.”
Falsey cited decisions made by the First, Sixth, Ninth, and Eleventh Circuit Courts which have held that discrimination against transgender citizens based on a transgender status “is discrimination because of sex under federal civil rights statutes and the Equal Protection Clause of the U.S. Constitution.”
“Numerous district courts have recognized that sex discrimination includes discrimination against transgender persons because of their failure to comply with stereotypical gender norms.”
Falsey referenced Glenn v Brumby (2011) specifically, where the 11th Circuit Court ruled in favor of Vandiver Elizabeth Glenn. Glenn was determined a biological male at birth, but identified as a woman since puberty. In 2005, she was diagnosed with “Gender Identity Disorder (GID).”
Glenn was employed as an editor with the Georgia General Assembly’s Office of Legislative Counsel (OLC) and was fired because of sex discrimination. She showed up to an office Halloween party “presenting as a woman,” the court wrote. Sewell Brumby, in his position as the head of OLC, told Glenn her appearance was inappropriate and asked her to leave, describing said appearance as inappropriate. Termination followed shortly after. Glenn sued.
Judge Rosemary Barkett wrote in favor of Glenn, calling Grumby’s complaints speculative and without “important” or even “sufficiently important government purpose” resulting in her termination.
Falsey noted that, just last year, a federal court decided in Grimm v Gloucester County School Bd. that “Title IX of the federal Education Amendments Act of 1972 can be interpreted as forbidding schools that receive federal funding from requiring students to use the restroom consistent with their birth sex, rather than their gender identity.”
But he admitted that the issue remains contentious with ongoing litigation proceeding throughout the country. The application meets the requirements that necessitate the role of the municipal attorney in qualifying it to proceed.
An additional recommendation was made, however, that the title of the initiative be changed. The “Protect Our Privacy Initiative,” he said, “is not neutral.”
As identified in the discussion above, many in the transgender community would see the measure as undermining their privacy interests by compelling them to request a single-occupancy facility or, if they comply with the proposed law, to enter a multiple-occupancy facility consistent with their biological sex at the time of birth, and yet inconsistent with their physical appearance, thereby forcing them to reveal the otherwise-private fact of their being transgender. We believe a title that does not inject bias or partisan coloring should focus on the primary effect of the proposed measure in comparison to current law. We suggest the petition be given the short title, “Regulating Access to Facilities Such as Locker Rooms and Bathrooms On the Basis of Sex at Birth, Rather Than Gender Identity.”
Additional recommendations were made about the proposed initiative’s summary.
The new initiative would need an amount of signatures equal to or more than ten percent of votes cast in the last general mayoral election. That number is 5,754. Considering the runner-up in that election, Eagle River Assembly member Amy Demboski, campaigned against an equal protection law for LGBTQ residents and received over 27,000 ballots cast, that is not a significant challenge.
In the meantime, expect this to head to the courts.