Regional Development Organizer in Montana
- The Ordinance, Ii (dgsmith.org)
- Boise Approves Transgender-inclusive Non-Discrimination Ordinance (dgsmith.org)
Regional Development Organizer in Montana
Justices reverse dismissal of case by the district court and allow litigation to proceed
HELENA, MT — The ACLU and plaintiffs, six loving, committed same-sex couples, will move forward with efforts to secure domestic partnership protections in light of a Montana Supreme Court decision, which in part granted their appeal in Donaldson and Guggenheim v. State of Montana from a dismissal of the case by the district court.
Though the court denied the plaintiffs’ initial appeal as too broad, the justices said the ACLU could move forward with more narrowly tailored efforts to secure equal treatment for same-sex couples in the state.
“Three of the justices said they would have granted same-sex couples recognition as domestic partners now. The majority also made clear that the decision to remand the case for additional proceedings in the lower court was based on technical issues, not on the substance of our argument that the Montana Constitution mandates equal treatment of all people,” said ACLU of Montana Legal Director Jon Ellingson. “They said that while we could not challenge the omission of same-sex couples from all of the statutes involving the rights of married couples in one case, we can challenge those statutes individually. We plan to do just that.”
The opinion states: “It is this Court’s opinion that Plaintiffs should be given the opportunity, if they choose to take it, to amend the complaint and to refine and specify the general constitutional challenges they have proffered.”
“We’re encouraged by the decision because the justices said that we could pursue the protections we are seeking,” said Mary Leslie, who lives with her partner, Stacey Haugland in Bozeman. “Legal protection is essential, not just for our families, but for all same-sex couples. We won’t stop until every loving couple is treated fairly.” Leslie lost her home because she was ineligible for worker’s compensation death benefits when her partner was killed in an accident. Another plaintiff, Denise Boettcher of Laurel, was denied bereavement leave when her partner Kellie Gibson’s father died.
In his dissent from the majority, Justice James Nelson wrote that same-sex couples should be given full protection now, saying the case, “concerns the right of committed intimate same-sex couples to receive the same civil protections which the State makes available to committed intimate different-sex couples. Plaintiffs assert, and rightly so, that their government may not single out unpopular groups for disfavored treatment, as the State of Montana has done here… I have never disagreed more strongly with the Court as I do in this case. With due respect, I believe today’s decision… wrongly deprives an abused minority their civil rights.”
Nearly 1,500 Montanans and more than 100 Montana-owned businesses have signed on in support of domestic partnerships, and more are signing on each day. Sixty-six Montana religious leaders signed onto an amicus brief supporting the ACLU’s appeal. Even more clergy signed a statement supporting the rights of same-sex couples.
“Montanans believe all their neighbors deserve dignity and respect,” said Rev. Marc Stewart, a Montana/Northern Wyoming United Church of Christ Conference Minister. “We believe that loving, committed couples should be able to fully live their own lives and have the protection of the state.”
Plaintiffs in the case are Mary Anne Guggenheim and Jan Donaldson of Helena, Stacey Haugland and Mary Leslie of Bozeman, Mike Long and Rich Parker of Bozeman, MJ Williams and Nancy Owens of Basin, Rick Wagner and Gary Stallings of Butte and Denise Boettcher and Kellie Gibson of Laurel. All say they will continue working with the ACLU to pursue legal recognition of their lifelong commitments to each other.
In addition to Ellingson, the couples are represented by Elizabeth Gill, a staff attorney with the ACLU’s Lesbian, Gay, Bisexual and Transgender Project; James Goetz and Ben Alke of Goetz, Gallik & Baldwin P.C.; Betsy Griffing; and Ruth Borenstein and Neil Perry of the law firm Morrison & Foerster LLP.
The recitals of the proposed Helena, Montana LGBT non-discrimination ordinance state that “it is the intent of the City of Helena that no person shall be denied his or her civil rights or be discriminated against based upon his or her sexual orientation or gender identity or expression.” It is a wonderful statement, really, one that even a few years ago would have been unimaginable, coming from any Montana governmental subdivision, state or local. Yet, here it is.
And I have been dubious for so long, even though I know in my soul that equality is a social inevitability, rather than a mere possibility. It is here, and it is now. But, do we have the will, collectively, as a community to make it happen. The Helena City Commission is out there, and though we have not always appreciated some of their steps or the way in which they took them, passing this ordinance will be a bold step forward. I for one appreciate the resolve and energy it has taken to come even this far. They have done their part.
The advocates too, the Montana Human Rights Network, the ACLU, other organizations, and many individuals who work, live, play and pray here have done their part too. They have stepped up and spoken out on behalf of a marginalized group that for too long has lived in fear and been denied equality. They are not asking for something more, or something special, but just the opportunity to live as the majority do – without fear or denial of security in employment, to participate in social and recreational activities with their friends, family and neighbors, schoolmates and fellow churchgoers, etc., and to be able to access all accommodations for basic needs including food, health, shelter, etc.. We owe these dedicated, courageous volunteers a great debt of gratitude for their willingness to fight the good fight, regardless of the outcome.
There have been the nay sayers too. They have stood up and said what they believe. And though we may disagree, we do not judge or condemn. In fact, we very much support their right to hold their beliefs and to practice them and voice them as they do. These rights are fundamental and vital to the life of this democracy. We propose. We discuss and dissent. We resolve and we move on – together.
Then, there are the rest of us, the citizens of the Helena valley, the community and the people.
We too have a stake in this. We have the opportunity to shape a community which truly reflects our values, one that can shine as a beacon of humanity for all of Montana, as the capital city should. We enjoy diversity, for otherwise life would be boring. We embrace the idea of a free society, for it is our heritage. We love justice, as even the prophets proclaimed that we should. Most of all, we thrive on patience, tolerance, kindness and love. And the greatest of these is love. The great ones proclaimed it, as even the wise and the holy ones have lived it. The singers sing about it, as the preachers preach about it. And it is all true, in the end. We must love one another even as we have been loved – not some frothy and emotional, sappy appeal, but the kind of action that elevates others need and dignity above our own. It is the kind of action which tolerates differences in deference to commonality and our shared struggle.
And so I ask – do we have it? We talk, preach and pray about notions like peace, justice, and fairness, and I believe that we intend them and desire them. But, do we do them? If I have evoked even a moment of pause to consider this question, we need not be too hard on ourselves. For in this action now before us we have the opportunity to redeem our lack of fidelity to our best of intentions. I am asking you, the people of this community to come out and join me in supporting the Helena Non-discrimination ordinance which will be coming on for final hearing and approval by the Helena City Commission at 6:00 on Monday, December 17th, not just because it is of vital importance to so many, or because it is the right thing to do, but because it says so much fundamentally about who we are as a community, as a society, about being the change we wish to see in the world. It is not enough to have good intentions, to talk, preach and pray about the world that we want to live in, that we want for our children. We have to get out and build it.
A poll in this week’s Helena Independent Record asks the question “Does Helena need a non-discrimination ordinance?” This is seemingly in response to the order of business currently before the Helena City Commission – an ordinance of non-discrimination [pdf].
“State and/or federal law prohibit the denial of civil rights or discrimination on the basis of age, race, color, national origin, ancestry, religion, creed, sex, pregnancy, marital status, familial status (solely for housing), and physical or mental disability. In addition to these protections, it is the intent of the City of Helena that no person shall be denied his or her civil rights or be discriminated against based upon his or her sexual orientation or gender identity or expression.”
Yeah, kind of a big deal for Montana.
At first, the numbers were fairly even on both sides – then those in favor of the ordinance outnumbered those opposed.
Typically the IR polls receive about 500 respondents total, but it appears that some conservative blogs, websites and facebookers have called in their forces to vote (in this very unscientific poll) against this ordinance currently being considered by the Helena City Council.
While I’m not sure that this is a huge issue (the poll, not the ordinance), it irks me that those opposed are marshaling the forces of discrimination across the country to weigh in.
Well, turnabout’s fair play. Vote here – and show Helena that the nation is watching.
“With liberty and justice for all,” the people said, with their hands upon their hearts. They shuffled as they took their seats or remained standing in the crowded council chambers at city hall in Helena. I wondered how many in attendance actually believed in those concepts they had just pledged their allegiance to. Many seemed to believe that liberty and justice should be applied only to those they alone deemed worthy.
The opponents had arrived early and assured that their ranks would take all the seats, leaving standing room only for the gays and lesbians, the Bi-s and transgender, and all their allies (friends, family and supporters). Though seemingly greater in number they were mostly relegated to the hallway outside the chambers, or an overflow room set up for viewing the proceedings on a large screen. It was filled to overflowing as well.
I had arrived early enough to take one of the last places for standing inside the chambers – in the aisle next to the last row of high-backed seats. I thought of the pews in the Catholic church of my youth as I stood firmly, almost defiantly, and prayed for grace and tolerance. Though transgender, I remain just old fashioned enough to have wondered if any of the good seated gentlemen would offer me their seat. None did.
At that very moment I wondered if I had not begun to understand just a glimpse of what Rosa Parks felt as she resolved to take her seat at the front of the bus. While the opponents wore stickers which implied that LGBT rights are “special rights,” they graphically displayed exactly why they are necessary. The inequality of the seating arrangement was readily apparent and not lost on many of those standing outside, craning their necks to hear and see the proceedings inside. Were they not marginalized by the very people who proclaim it is not so?
As the council progressed through its agenda the tension mounted to a palpable level no matter which side of the LGBT rights issue you stood on. It could be felt collectively. The mayor came to the matter he correctly surmised we had all come to hear. The council made and discussed amendments to the pending LGBT anti-discrimination ordinance that proposed to protect LGBT people from discrimination in housing, employment and public accommodation.
The first was the “locker room” amendment proposed with ambivalence and stated with reluctance by one commissioner due to an email he received about a pre-op transwoman in Evergreen, CO who had apparently, yet inadvertently, dropped the towel which covered her genital area while in the sauna, offending another woman. The amendment would not extend protections to such transwomen in bathrooms, locker rooms or public facilities in which people customarily are nude.
The second amendment was of greater consequence, though not immediately apparent. It provided that persons who felt they were discriminated against due to their LGBT status would have to first file their claim with the state Human Rights Bureau, and could only file with the city if the state rejected their claim.
Both amendments were adopted, and now came the time for public comment. As a proponent, I got to speak first. Here is some of what I said:
I am a civil rights attorney here in Helena. I am also Transgender, as many of you know. I am anatomically consistent with my appearance in all respects for whatever that is worth to others – I know and am very grateful for what it is worth to me.
I support the ordinance without the “swimming pool”amendment because I have experienced discrimination here in Helena on more than one occasion, although never in the locker room, or bathroom, or anywhere else of that nature – even during the year prior to surgery when I presented full time as a woman, though anatomically still male.
The irony of the position that I find myself in is not lost on me. Other than undergoing a procedure to correct something that was wrong my entire life,- a procedure that some think is a bit radical, I am a pretty conservative woman – in presentation, dress, style and activities. I go to church, work here in Helena, shop here, and pay taxes. I do not drink, smoke or gamble and don’t go with the boys who do. In fact, I don’t go with boys, but that is another matter.
I am also rather modest & find it difficult in public to talk about, of all places, the bath room, and I wonder what kind of mind conceives of the threat a person such as myself presents in the rest room. What kind of mind conceives of prurient activities in bath room stalls? The thought repulses me. Nonetheless, I can assure you that I (and others I know in this area) have only one interest in the rest room or locker room – relieving myself or changing my clothes
Now I wonder if there is anyone in this room whom I offended when I went to the woman’s rest room or locker room. No one has ever said a single word about it, nor even cast a cross glance at me. In fact, in the beginning, I was more afraid of everyone else than they could ever be of me. For a trans person, the greatest single fear we live with our entire life is being found out – getting “read” in trans parlance. That fear is so strong, that some people kill themselves or hide in a self constructed box for decades because they are afraid that if people knew they were transsexuals they would be reviled, rejected, scorned and perhaps worse. Trans people are assaulted every day, and in some cases murdered for trying to overcome their fears and be true to themselves. That fear is based on actual events – it is real, it is rational and it is pervasive.
On the other hand, when was the last time you saw a man expose himself in a woman’s rest room? When was the last time you saw an anatomically incorrect person in the locker room in all their glory? I have not had that experience in the five+ years I have lived and worked in Helena. I wonder if the sheriff and police chief could enlighten us with the number of calls they have fielded of this nature in the last ten years?
So, I ask you. Is the fear of males in the woman’s locker room real? Is it rational? The reality is that trans people are so afraid of being read, that they are not “passing” in the gender of identity, that they would not dream of exposing themselves until they are anatomically consistent, and would sooner forfeit their life than take that chance. There may be some men who would do that, but, I assure that their issues are not gender identification dysphoria and the laws are already in place to prosecute them.
I say it again – trans people have by far more to fear from society than any part of society has to fear from them. It is a public safety issue – and it is the trans people would need protecting.People in Helena are already using the bathrooms and locker rooms where they feel safest and most comfortable. If a transman or transwoman were to expose him or herself for some prurient interest, the circumstances are amenable to prosecution under the criminal code. This ordinance does not change any criminal codes (like sexual assault or indecent exposure, i.e. exposure for sexual gratification). If a crime were to take place, it should be investigated the same way that crimes are investigated currently, and similarly prosecuted. We can work together as a community to prevent and address crimes, make our city safer, and more just. We can do the education necessary to make sure that all members of our community feel safe and are able to fully participate. This ordinance is one step in making our community safer and stronger, and reflecting our values of liberty and justice for all.
I believe that still. However, the amendments now threaten to swallow the rule and dissolve any gains we might have made in the effort to end discrimination. The “locker room” question is a tough issue, and as a former elected official, I have great empathy for the council. No one should be forced into a position not of their own choosing where they are threatened and afraid; and this cuts both ways. Imagine the shock a genetic woman might feel as she turns a corner, naked, only to see a pre-op transwoman in all her beautiful glory. On the other hand, imagine the ridicule and risk to safety for a naked transman in the woman’s locker room, or the risk to safety for the transwoman, both pre and post op in the men’s locker room. Thus, we have a dilemma.
It seems to me that when faced with such a dilemma that compromise is the only solution. The compromise I propose is that the “locker room” amendment should be revised to preclude only those with socially inconsistent genitalia from revealing as much, from exposing such inconsistent genitalia. To be clear, a pre-op transwoman cold be excluded from the female locker room if she exposes her penis, and similarly a transman if he reveals the lack thereof in the male locker room. I make this suggestion knowing that many trans people will feel deprived from full participation in activities like showering at the gym, or sitting naked in the sauna in their true gender. While true, I cannot see that it can be helped. It is a comprise after all, and like any settlement, no one is completely happy.
The second amendment, which I refer to as the HRB amendment, is in fact of greater consequence and should be stricken. First, the HRB operates under the auspices of the Montana Human Rights Act and the Civil Rights Act. The MHRA affords no LGBT protection and could not be relied upon in pursuing an HRB claim. The Civil Rights Act provides only speculative relief for the LGBT folks, and a merely persuasive argument for trans folk in employment only in accord with Macy v. Holder, an administrative law opinion rendered by the EEOC which recognized, as a number of federal courts have, a “gender stereotyping” claim under Title VII of the act as a means of sex discrimination for trans people. Moreover, if the HRB, the defacto discrimination expert accepts an LGBT claim under Title VII, than the city claim will not be necessary. On the other hand, if the HRB rejects a claim it will not likely be possible because good lawyers would use it as evidence in a motion to dismiss the city claim. When the HRB says that it could not find reasonable cause to believe that discrimination occurred, it is both compelling and persuasive. I believe it would be dispositive in this circumstance, rendering the city ordinance a nullity. Thus, this amendment must be defeated.
If Helena, as a community can iron out these difficulties and pass this ordinance than we will take one step closer to liberty and justice for all. And I hope that we do because Everybody Matters.
Boise just did something Helena was terrified to do – made discrimination against anyone because of sexuality and gender identity illegal.
The Boise City Council unanimously approved a nondiscrimination ordinance for the city of Boise Tuesday evening.
“… Big win for equality in Boise,” the city tweeted Tuesday.
The ordinance, proposed by Council President Maryanne Jordan and Council member Lauren McLean, prohibits discrimination on the basis of sexual orientation and gender identity/expression in employment, housing and places of public accommodation in the city.
There are exceptions for religious corporations, associations, education institutions and societies. The U.S. Government and state of Idaho and any of their departments or agencies except the city of Boise are also exempt.
During a packed public hearing on the ordinance in November, the Council heard from 60 people (who) supported it and 12 opposed.
The new law takes effect Jan. 1, 2013.
Read the full ordinance here.
It includes perceived sexuality and gender identity. Which is amazing for any city.
I just can’t believe Boise beat Helena to the punch…. Or maybe I can.
From The St Louis Post-Dispatch:
In one of the longest and most emotional meetings in the St. Louis County Council’s history, an ordinance was narrowly passed Tuesday night that adds gender identity and sexual orientation to the county’s anti-discrimination regulations and hate crimes law.
An overflow crowd of more than 250 people spilled out of the council chambers in Clayton; 92 of them signed up to address the council, and most took advantage of that opportunity in a public comments segment that lasted more than two hours.
And as could be expected on an issue that involved religion and civil rights, most of them spoke fervently.
The ordinance adds protections for people in employment, housing and public accommodations in unincorporated areas, regardless of their sexual orientation. It also expands protections on the basis of gender and disability.
Are you watching Helena? It can be done.