Q and A: City’s proposed gender identity ordinance
There are bound to be some questions at Lawrence City Hall next week.
City commissioners at their Tuesday evening meeting will consider an ordinance that will make it illegal for employers, landlords, merchants and other business owners to discriminate against people who are transgendered.
Let’s face it: Some people — as a former City Commission candidate once did during a forum — will have to ask what transgender means, and others are bound to have many questions about how government will regulate the subject.
The Journal-World this week compiled a list of questions concerning the issue of gender identity, and asked lawyers, regulators, members of the transgender community and opponents of the law to respond.
If what happened in Manhattan is any indication, opposition is likely. City leaders there passed a law — the first in the state — that would make it illegal for employers and landlords to discriminate against a person for reasons of gender identity. But that law was repealed after a new slate of city commissioners took office this year.
In Lawrence, a forum took place in April where several members of the community expressed religious, moral and practical concerns with the idea. An organizer of the local forum did not return phone calls seeking comment this week. Representatives of the Alliance Defense Fund, which led the conversation at the April forum, also did not respond to a request for comment.
Here are questions surrounding the gender identity issue:
What issues are city commissioners trying to address?
The city code does nothing to prohibit an employer from firing or refusing to hire individuals who present themselves as a gender that is different than their birth — an employee who was born as a man but now lives as a woman, for example. The code also does nothing to stop a landlord from refusing to rent to individuals who are transgender, and it does not prohibit a merchant or health care provider from refusing service to transgender individuals. The proposed code — it is a draft and commissioners can change it — would make such discrimination illegal in the city, said Toni Wheeler, city director of legal services.
Is such discrimination happening in Lawrence?
Specific statistics for Lawrence aren’t kept, but Stephanie Mott, executive director of the Kansas State Transgender Education Project, said national statistics suggest that such discrimination likely is occurring in Lawrence. A survey of nearly 6,500 transgender individuals across the country found 19 percent have been denied basic medical care. Scott Criqui, chairman of the city’s Human Relations Commission, said he has anecdotal evidence that such discrimination has taken place in Lawrence. He said a transgender friend was denied medical care in Lawrence three times before leaving the community for another doctor.
What does this proposed ordinance say?
The city has an existing ordinance that makes it illegal to discriminate against people by reason of race, sex, religion, color, national origin, age, ancestry, familial status and sexual orientation. The proposed ordinance adds the term “gender identity” to that list. It also provides a definition of gender identity. It is: “the gender-related identity, appearance, behavior, and other characteristics of an individual, as perceived by the individual or another, and without regard to the individual’s actual or assigned sex at birth.”
Using that definition, what criteria must be met before someone is considered transgender under this law?
Wheeler said a key determination is how people identify themselves. If an individual who was biologically born a man, for example, “identifies as female by identity, appearance, behavior and other characteristics,” the person would receive the protections under this law, Wheeler said. The individual is not required to have undergone medical treatments, such as hormone therapy or other procedures, in order to be protected under the law, although Mott said many transgender people do undergo some sort of medical treatment as part of their transition.
What about someone who occasionally presents as the opposite sex, such as a “cross-dresser?”
Wheeler notes that some cross-dressers do not consider themselves transgender. Under the proposal, the key criteria would be how the person identifies himself or herself.
What about public restrooms? Would this law allow someone who was born a man and continues to possess the biological features of a man to enter a female restroom if they identify themselves as female?
Wheeler said the law would allow for that. Individuals who identify themselves as the opposite sex by “identity, appearance, behavior and other characteristics” would be afforded the ability to use the restroom of the gender with which they identify. Wheeler said an employer may be able to limit which bathroom an employee uses, but the employer would have to do so for a “valid business purpose.”
What about locker rooms, such as those found at health clubs or recreation centers? Would they be covered under the law?
Yes. They fall under the category of a public accommodation. Criqui, the chairman of the Human Relations Commission, said the locker room issue likely will require public education. Mott, though, said the issue is workable. Mott, who was born a biological male, said she would never undress in front of other females in a locker room. Instead, she would expect the owner of the locker room to provide accommodations that would allow her to change and shower in privacy.
What other businesses would be covered by this law?
The law defines public accommodation as a business that “caters or offers goods, services, facilities and accommodations to the public.” Examples include lodging establishments, restaurants, bars, barber shops, theaters, swimming pools, public transportation vehicles and government offices.
Have any business groups expressed opposition to the law based on concerns about liabilities it may create for businesses?
The Lawrence Chamber of Commerce has asked for a copy of the proposed ordinance to review, but the organization has not yet made any public statements about the proposed ordinance. City commissioners, though, have received correspondence from individuals who have expressed concern that the law will create a “quagmire of liabilities” and will be detrimental to keeping and attracting businesses in the community.
Do other cities or states have such laws?
Yes. Kansas City, Mo., is the closest city to Lawrence that has such a law. Mott said about 100 cities and counties across the country have such laws. In addition, 15 states have statewide laws declaring gender identity as a protected class in discrimination matters.
What have some of those jurisdictions reported?
The Journal-World obviously did not talk to all the jurisdictions with such laws, but information was sought from the Iowa Civil Rights Commission, which oversees the statewide law that applies to all cities and counties in Iowa. Beth Townsend, executive director for the commission, said her office has had 25 complaints filed under the law in the last three years. “When the law was being debated, people thought we were going to be inundated with complaints, but it hasn’t been that way at all,” Townsend said.
How many complaints does the city’s Human Relations Division receive regarding discrimination of any type, such as race, age, religion, etc.?
Wheeler said that since 2009, the city has averaged eight cases per year. She said many cases are resolved by the parties before any formal finding is made by the city’s Human Relations Commission. She characterized a formal finding by the commission that an individual had been the victim of discrimination as “rare.”
Did the city previously come to some sort of decision about this gender identity issue?
The city’s Human Relations Commission voted 6-3 in November 2009 to recommend that the city not adopt a new ordinance that includes gender identity as a protected class. City commissioners, however, have the final say in the matter, and commissioners are just now taking up the issue. A majority of human relations commissioners, at the time, expressed concerns related to the expense of enforcing the changes to the ordinance, the ambiguity in the language of the term gender identity, and concerns about how the policy would affect public facilities such as public restrooms and shower facilities.
City commissioners meet at 6:35 p.m. Tuesday at City Hall.