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Archive for Thursday, February 27, 2014

Outside Lawrence, discrimination based on sexual orientation already legal in Kansas

February 27, 2014

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Lawrence ordinance unique

No other cities in Kansas have anti-discrimination ordinances like Lawrence’s, which prohibits discrimination based on sexual orientation, said Thomas Witt, executive director of Equality Kansas. Witt’s organization describes its mission as ending discrimination based on sexual orientation and gender identity.

A few other cities either have or have dabbled in getting sexual orientation clauses of some kind on the books. Among them, Witt said:

Topeka has a “weak version,” because Human Relations Commission is not authorized to enforce it. Mission has a ban on discrimination based on sexual orientation, but only by government employees.

Approved or proposed measures banning such discrimination in Manhattan, Hutchinson and Salina have all been reversed.

— Sara Shepherd

Related document

House Bill 2453 ( .PDF )

Kansas has attracted an onslaught of national criticism over a proposed bill that media often have summarized as allowing discrimination against gays.

Lost in the fray has been the status quo: Kansans don’t need this law to legally discriminate against people based on their sexual orientation, legal experts say.

With few exceptions — namely, Lawrence — they already can.

“There’s nothing in current law in Kansas that prohibits individuals from discriminating against each other on the basis of sexual orientation,” said Washburn University School of Law professor Bill Rich, whose area of expertise is constitutional law. Likewise, he said, federal law does not prohibit private discrimination based on sexual orientation either.

Most states have non-discrimination statutes, Rich said. A number of those include sexual orientation as a protected category, but Kansas’ is not among them.

The Kansas Act Against Discrimination — which addresses employment relations, public accommodations and housing — prohibits discrimination against individuals because of their race, religion, color, sex, disability, national origin, ancestry and familial status.

The act does not list sexual orientation as a protected class. So, law experts say, gays who believe someone — such as a business owner or employer — has discriminated against them have no legal recourse.

“When you get out to rural communities or many other cities in this state, unless they’ve adopted a discrimination policy similar to the one in Lawrence, there are no protections,” said Lawrence attorney David Brown, who is teaching a LGBTQ law seminar this semester at Kansas University and has been practicing non-traditional family law more than 20 years.

Lawrence unique

In Lawrence, discriminating against someone based on sexual orientation is illegal, although formal complaints are rare.

In the early 1990s Lawrence was the first city in the state to add sexual orientation to the list of protected classes in its human relations ordinance, alongside the usual classes such as religion, ancestry and age.

Lawrence’s ordinance exempts religious organizations but applies to individuals, such as a private business owner who wants to refuse service to someone, city attorney Toni Wheeler said.

People who think they have been discriminated against because of sexual orientation can file a complaint, which the city’s Human Relations Division investigates, Wheeler said. If conciliation can’t solve the matter and investigators find there’s probable cause to believe an ordinance violation has occurred, the next step is a hearing before members of the Human Relations Commission, which can order remedies.

Since 1995, the city has had nine cases alleging discrimination based on sexual orientation, Wheeler said.

Brown said he believes many more people encounter discrimination than file formal complaints.

In most places there’s nothing they could do anyway, Brown said. Even in Lawrence, a formal complaint can be time consuming or intimidating.

“People like attention usually but not for this kind of problem,” Brown said.

Bill at standstill

It appears the bill that sparked protests at the state capitol and ridicule in national media will not move forward.

The House approved House Bill 2453 this month, but Senate leaders said the bill is dead in that chamber. Instead, committee hearings are expected to further discuss the general issue of religious freedoms.

Supporters have stressed that the bill, titled “an act concerning religious freedoms with respect to marriage,” is preemptive in nature. They say it’s needed in case a federal court strikes down Kansas' constitutional ban on same-sex marriage, as has happened in other states.

The bill proposes making it illegal for government entities to require individuals or religious groups to provide accommodations contrary to their religious beliefs regarding sex or gender. Specific examples include providing services, facilities, counseling, adoption or employment benefits related to any “marriage, domestic partnership, civil union or similar arrangement.”

Even though, in most of the state, such a measure would not change the status quo when it comes to discrimination based on sexual orientation, law scholars say potential ramifications of such a measure should be taken seriously.

Brown said, for example, people could use it to discriminate against married couples that aren’t same-sex, perhaps couples who follow different religions.

“It’s an extremely broad and scary piece of legislation,” Brown said. “There are all sorts of ways you can twist that around.”

Comments

Fred Mertz 6 months, 2 weeks ago

So is the body boutique operating illegally by excluding men. - discrimination based on sex?

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Seth Peterson 6 months, 2 weeks ago

No; although one should explain that your question is trying to lead into a false premise. As mentioned before you are confusing the definition of discrimination with discrimination in a legal sense. You're question really has two parts:

  1. "Is Body Boutique operating illegally?" - No.

  2. "I don't understand the meaning of discrimination in a legal and business sense, is what they do discrimination?" - No.

You seem to continue to ask the same question without paying any attention to the answers. Either you do not understand the context of the situations and there is ample reading which can help provide such context, or you do not care about the context of the situation in which case you can't be taken seriously.

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Fred Mertz 6 months, 2 weeks ago

Why not? Aren't they discriminating based on sex? Is there an exemption they meet or more to the law that isn't in the article.

Thanks in advance for explaining why they don't violate the law.

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Seth Peterson 6 months, 2 weeks ago

Aren't they discriminating based on sex? - No.

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Fred Mertz 6 months, 2 weeks ago

How are they not discriminating based on sex if men cannot be members? Explain why discriminating against gays would be illegal but discriminating based on sex isn't. Yes, I don't understand why there would be a difference so please explain since you say there is a difference.

What is the false premise my question is trying to lead to?

And who are you quoting in your number 2. Certainly not me since I didn't write it. So who are you quoting?

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Seth Peterson 6 months, 2 weeks ago

I paraphrased your statement, because you do not understand the context of the situation especially when it relates the legal concept of discrimination. The difference is much like the difference between the phrases "white power" and "black power" those who do not understand the context of the two phrases will be unable to see the difference in the meaning of the phrases and why one is racist and the other is not.

These will often be the same individuals who will look at a male-exclusive gym and a female-exclusive gym and not understand why there is a contextual difference.

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Fred Mertz 6 months, 2 weeks ago

Seth still waiting for your explanation of how a business can discriminate based on sex and not violate the Lawrence ordinance.

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Jim Slade 6 months, 2 weeks ago

If you care to do some of your own research you'd find that places like this ARE open to lawsuits of discrimination. Most notably "women only" gyms have been sued and have had to pay settlements. So in essence, yes they are discriminating and they take on the risk of being sued.

Unlike the legislature's aim to actively give discriminators a legal way to discriminate without the risk of being sued.

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Seth Peterson 6 months, 2 weeks ago

I did some quick looking and outside a few cases in Australia, I'm not finding any law suits targeting Body Boutique for sexual discrimination, and as I write this I see you referenced "women only" gyms in general. Do you happen to have a reference for these lawsuits?

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Jim Slade 6 months, 2 weeks ago

I can't get to the links at the moment due to my work's web blocker... but google Body Central lawsuit discrimination. That's one I can remember off the top of my head. I think Curves International has also been sued, but I can't remember if that was in the U.S. or in Britain.

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Armen Kurdian 6 months, 2 weeks ago

I think the legal response is that catering to females is the legitimate business function of the entity, much as a man couldn't sue a gynecologist for not seeing him, or that a Curves for Women franchise would not admit a man as a member. You have to prove in case you were sued that you had a legitimate business reason for doing what you did, and that your business history proved that out.

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Fred Mertz 6 months, 2 weeks ago

Here is my point. It may be legal, but if you oppose discrimination based on sexual orientation or gender, then you should be universal and not selective in that belief.

To say it is wrong to discriminate against me, but I should be free to discriminate is hypocritical.

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Fred Mertz 6 months, 2 weeks ago

Armen. I quickly scanned the human relations ordinance and see nothing that makes an exception for a legitimate business purpose. It clearly states it is prohibited to deny services based on sex.

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Leslie Swearingen 6 months, 2 weeks ago

No need to be snarky, Seth, there are many of us who have never studied law and therefore do not understand the meaning of discrimination in that sense. Also, never been a business person.

I would assume that the Body Boutique operates on the assumption that some women would feel more comfortable exercising around women with no men around. But, then, couldn't you argue that since some white people are uncomfortable around black people some places can be legally segregated.

Don't snark me I will pay attention to your answer.

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Seth Peterson 6 months, 2 weeks ago

My posts with snark were directed specifically at Brock/fred, who as someone who has been on these forums for years and asks the same questions, regardless of how many times they have been answered and is clearly not actually looking to learn from the responses, but trying to use them either rhetorically or to set up strawmen arguments rather than for the gathering of information.

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Munchma Quchi 6 months, 2 weeks ago

When they equally represented, secession is for those who are too weak to stand up and fight for their principles.

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Bart Johnson 6 months, 2 weeks ago

Secession is fighting for your principles.

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Munchma Quchi 6 months, 2 weeks ago

It is notoriously difficult to draft legislation that enables discrimination against a specific group that does not also in some way allow discrimination against yourself. However, it is much easier to just ignore discrimination... that way you can discriminate as you wish and complain when you are discriminated against.

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Fred Whitehead Jr. 6 months, 2 weeks ago

Yup, evil ole' Larryville is making a bad example for the Koch Regime Kansas Government.

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Andrew Stahmer 6 months, 2 weeks ago

The sign in that photograph is correct -- Jesus DOES love her gay son. The whole 'WORLD' part of John 3;16 HAS NOT CHANGED.

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Armen Kurdian 6 months, 2 weeks ago

I do believe that a right to discriminate for a religious belief ends when you are operating a for-profit business entity. In the free market (and arguments to the contrary can be made to my point), I believe that you cannot discriminate against an individual unless it makes sense from a business standpoint...i.e., let's say I have a sports bar where I want hot chicks in bikinis serving drinks, if I have been consistent in my hiring process, I shouldn't be forced to hire a 300lb woman to serve my customers, nor if I were a strip club, should I be forced to hire a man who wants to pole dance. Extreme examples just to make the point. However, if my entity is non-profit, and established based on legitimate religious principles, I shouldn't be forced to serve a gay couple if that goes against my religious beliefs. For the major religions, it would be an easy justification so long as the position was consistent w/the religion.

Now, who wants to make offerings upon the altar of the all-powerful flying spaghetting monster?

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Leslie Swearingen 6 months, 2 weeks ago

I will offer up someone who says that The Walking Dead is a lousy show.

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