Legislature(2017 - 2018)GRUENBERG 120
03/30/2018 01:00 PM House JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| SB93 | |
| HB184 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 93 | TELECONFERENCED | |
| + | HB 184 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 355 | TELECONFERENCED | |
HB 184-DISCRIMINATION: GENDER ID.;SEXUAL ORIENT.
2:55:47 PM
CHAIR CLAMAN announced that the final order of business would be
HOUSE BILL NO. 184, "An Act adding to the powers and duties of
the State Commission for Human Rights; and relating to and
prohibiting discrimination based on sexual orientation or gender
identity or expression."
2:56:19 PM
REPRESENTATIVE ANDY JOSEPHSON, Alaska State Legislature, advised
that one remaining segment of society suffers from some
discrimination in the State of Alaska. He clarified that he was
not implying that there are not ongoing issues in Alaska
involving race, gender, and national origin, that require the
state's focus and intention. He then pointed to the one segment
of society [the Lesbian, Gay, Bisexual, Transgender, Queer]
(LGBTQ) community for which discrimination is lawful in Alaska,
with the exception of Juneau and Anchorage. He offered that the
issue of whether the Anchorage ordinance regarding the
prohibition of discrimination based on sexual orientation,
gender identity or expression, will survive a challenge will be
decided via this upcoming election. Currently, other than the
municipalities of Juneau and Anchorage, he explained that it is
fully lawful to allow discrimination for public accommodations
from lenders, landlords, subdivisions of the state, and local
governments. Although, he said, there is a possible exception
under Price Waterhouse [v. Hopkins, 490 U.S. 228 (1989)], and
"sexual stereotyping." He advised that the Equal Employment
Opportunity Commission (EEOC) has used that case and infused it
with more meaning so in cases of employment discrimination under
federal law, there can sometime be some protection. The Alaska
Department of Law (DOL) informed the Alaska State Commission for
Human Rights that this statute is the remedy necessary for
Alaska's LGBTQ community to fully engage in every respect and
receive the same economic benefits as others in society, he
advised. Representative Josephson described the current process
regarding a violation, as follows: a complaint is filed with the
Alaska State Commission for Human Rights; there would be an
effort to mediate that complaint; failing that, at the
commission's discretion, there could be an investigation into
the complaint; depending on the results of that investigation
and whether any compromise could be reached, the complaint would
move to the commission; and from there, potentially, move to the
superior court, and the Alaska Supreme Court. Fundamentally, he
related, this is a moral issue and this legislation is an
opportunity to offer further justice and make history, he
remarked.
3:01:04 PM
MEGAN HOLLAND, Staff, Representative Andy Josephson, Alaska
State Legislature, turned to the PowerPoint presentation "HB
184: Non-Discrimination Based on Sexual Orientation, Gender
Identity or Expression" slide 3, and advised that historically
speaking, Alaska has been a pioneer state in the advancement of
civil rights protections. She advised that the original Alaska
civil rights law [championed by Elizabeth Peratrovich and signed
into law by Governor Ernest Gruening on February 6, 1945],
became state law 20 years prior to the United States Civil
Rights Act of 1964, enacted on July 2, 1964. The protected
classes that exist within current statute include: race,
religion, color, national ancestry, physical or mental
disability, age, sex, marital status, changes in marital status,
pregnancy, and parenthood. This legislation, she explained,
adds an additional protected class of sexual orientation, or
gender identity or expression, and based on current Alaska law,
this class suffers discrimination as to employment, credit and
financing, public accommodations, and sale, lease, or rental of
property. She stressed that this legislation does not create
any new rights or privileges that do not exist under current
statute, it merely creates a new protected class to be included
under the existing civil rights protections under state law.
3:02:55 PM
MS. HOLLAND turned to slide 4, "Alaska State Human Rights
Commission (ASHRC) Resolution & Recent Action," and advised that
the ASHRC does not currently process complaints on the basis of
sexual orientation, gender identity or expression. She noted
that the commission had advised that people do call with these
complaints and are turned away because the Alaska Supreme Court
determined that sex discrimination is not based on sexual
orientation, gender identity or expression. However, she
pointed out, that decision does not coincide with how the United
States Supreme Court and other federal courts have defined sex
discrimination. A significant amount of caselaw has developed
over the past few years that changed this definition of sex
discrimination to be inclusive of discrimination based on sexual
orientation, or gender identity or expression given that the
discrimination based on these factors is inherently sex-based.
The Alaska Supreme Court offered a ruling that did not
necessarily matchup with the above definition, and the Equal
Employment Opportunity Commission's (EEOC) interpretation of sex
discrimination came from that developing caselaw. In 2016, the
Alaska State Commission for Human Rights passed a resolution
urging the state legislature to pass legislation identical to HB
184. The commission also worked with the Alaska Department of
Law (DOL) to remediate this issue through the regulatory process
and expand its definition of sex discrimination. That language
was developed last year and after meeting with the DOL, the
commission decided this issue would best be addressed through
legislation rather than through the regulatory process, she
said.
3:05:32 PM
MS. HOLLAND turned to slide 5, "LGBTQ Discrimination in Alaska,"
and advised that the state does not have a lot of data on LGBTQ
discrimination because most of the data obtained is through
other states and their agencies that process complaints, and
Alaska currently does not process complaints. Although, a
survey specific to Anchorage was performed in 2011, and it found
that LGBTQ Alaskans do experience discrimination in the areas of
public accommodations, employment, and all of the areas under
protected civil rights law, and she opined that there is a large
amount of anecdotal evidence to support that finding as well.
She referred to the map located on slide 5 to demonstrate that
the locations of LGBTQ discriminations are not specific to any
one area or district in Alaska, and she pointed out that LGBTQ
discrimination spans from the far North to the far South, and
this is not an urban or district issue because it affects the
entire state.
3:07:01 PM
MS. HOLLAND turned to slide 6, "National Rates," and advised
that the slide presents a better idea of the fact that this
discrimination is an issue. This data was taken from various
states that process complaints of discrimination based on sexual
orientation, gender identity or expression. The rates can be
comparable to discrimination based on race or sex, depending on
the type of discrimination, and Alaska is not included in this
data because it does not process complaints, she reiterated.
3:07:44 PM
MS. HOLLAND turned to slides 7-9, "Existing Protections" and
noted that on a national level, 20 states and Washington D.C.,
prohibit discrimination based on sexual orientation, or gender
identity; two states prohibit discrimination based solely on
sexual orientation; seven states prohibit discrimination against
public employees based on sexual orientation, or gender
identity; and five states, including Alaska, prohibit
discrimination against public employees based solely on sexual
orientation. Alaska does have municipal ordinances in Juneau,
Anchorage, and Sitka that are "incredibly similar" to HB 184,
and the anti-discrimination ordinance in Bethel is specific to
employment and does not cover every area of the civil rights
laws that this legislation covers.
3:08:51 PM
MS. HOLLAND turned to slide 10, "Equal Employment Opportunity
Commission (EEOC)," and advised that some remediation is
available through this national commission if an LGBTQ
individual in Alaska is discriminated against in the area of
employment specifically. The individual can call the EEOC to
file a complaint; however, this remediation is not sufficient
because it is a federal organization and federal bureaucracy is
difficult to navigate. The EEOC has a limited ability to
process these complaints and these issues, she said.
3:09:38 PM
MS. HOLLAND turned to slide 11, "Where's the gap?" and advised
that unless an LGBTQ Alaskan is a resident of a protected
municipality, they have no protections in areas of: housing,
financing, credit, public accommodations, and unlawful practices
by the state or its political subdivisions. She advised that
there are some remediations available in the area of employment
but they are grossly unequal.
3:10:05 PM
MS. HOLLAND turned to slides 12-13, "LGBTQ Non-Discrimination
Policies: Good for Commerce," and paraphrased slide 13 as
follows:
96% of top Fortune 500 companies include sexual
orientation in their non-discrimination policies and
70% include gender identity
53% of the top 50 federal government contractors link
internal policies prohibiting this form of
discrimination to improving their bottom line
Economic benefits include:
Higher recruitment & retention
Increased generation of ideas & innovation
Diversified consumer base
Increased employee productivity
Securing more public sector clients
Improved employee relations & morale
MS. HOLLAND explained that the above data is the result of a
2011, Williams Institute [UCLA Law] study that surveyed
employers with these types of polices. She advised that
included on this slide is a list of companies employing these
policies, and noted that the Anchorage Economic Development
Corporation, Anchorage Chamber of Commerce, and Visit Anchorage
Alaska, all support the Anchorage non-discrimination ordinance.
Slide 13, she pointed out, shows that this is becoming good
business practice that has taken place without the requirement
of law.
3:12:24 PM
MS. HOLLAND turned to slides 14-21, "Sectional," and continued
paraphrasing the sectional analysis as follows [original
punctuation provided]:
Section 1: Adds "sexual orientation, gender identity
or expression" to the list of protected categories
that currently include race, religion, color, national
ancestry, physical or mental disability, age, sex,
marital status, changes in marital status, pregnancy,
or parenthood.
Section 2: Adds "sexual orientation, gender identity
or expression" to the list of discriminations which
are cause for public concern, and asserts the need for
the state to prevent such discrimination in
employment, credit and financing practices, public
accommodations and sale, lease or rental of real
property.
Section 3: Adds "sexual orientation, gender identity
or expression" to the categories of protected civil
rights.
Section 4: Adds "sexual orientation, gender identity
or expression (SOGI)" to the prohibitions against
unlawful employment practices.
Refusal of employment because of SOGI, when
demands of the position do not require distinction on
the basis of SOGI.
3:13:36 PM
MS. HOLLAND noted that the above requirements include other
protected classes, for example, pregnancies are a protected
class with an exemption. She offered that if a pregnant woman
applied for a job that required her to "be hanging upside down
or doing something incredibly labor intensive," the pregnant
woman could lawfully be turned away from that job.
MS. HOLLAND continued paraphrasing the sectional analysis as
follows [original punctuation provided]:
Labor organizations cannot expel or refuse
membership due to an individual's SOGI
Employers cannot circulate discriminatory
statements
Employers may not fire a person for filing a
complaint
Section 5 inserts: Ministerial exemption, under
Hosanna-Tabor v. EEOC, Supreme Court case, ruled that
federal discrimination laws do not apply to religious
organization's selection of religious leaders
Language does not affect the implementation of
this legislation, as it is a federal interpretation
that would be applied regardless.
3:15:09 PM
MS. HOLLAND noted that a more expansive religious exemption is
contained within current state law, and that is the definition
of employer within this area of statute.
AS 18.80.300(5), definition of employer
"A person, including the state and a political
subdivision of the state, who has one or more
employees in the state but does not include a club
that is exclusively social, or a fraternal,
charitable, educational, or religious association or
corporation, if the club, association, or corporation
is not organized for private profit."
Section 6: Adds "sexual orientation, gender identity
or expression" to the prohibitions against
unlawful practices in public accommodations
Refusal or denial of any services, goods,
facilities, advantages or privileges because of SOGI
Circulation of discriminatory communication
Excludes physical fitness facilities which may
place limits based on sex
AS 18.80.300(16) public accommodations definition
"a place that caters or offers its services,
goods, or facilities to the general public and
includes a public inn, restaurant, eating house,
hotel, motel, soda fountain, soft drink parlor,
tavern, night club, roadhouse, place where food or
spiritous or malt liquors are sold for consumption,
trailer park, resort, campground, barber shop, beauty
parlor, bathroom, rest house, theater, swimming pool,
skating rink, golf course, cafe, ice cream parlor,
transportation company, and all other public amusement
and business establishments, subject only to the
conditions and limitations established by law and
applicable alike to all persons."
Section 7: Adds "sexual orientation, gender identity
or expression" to the prohibitions against unlawful
practices in the sale or rental of real property
Refusal to sell, lease, or rent property because
of SOGI when otherwise qualified
Discrimination because of SOGI in a term,
condition, or privilege relating to the use, sale,
lease, or rental of real property
Making a written inquiry of SOGI
Falsify availability of property
Blockbusting
Publishing statements that indicate preference in
regard to SOGI
Section 8: adds "sexual orientation, gender identity
or expression" to the prohibitions against unlawful
practices in financing and accreditation
Discriminate because in applications for
financial assistance or credit
Discriminate in a term, condition, or privilege
relating to the obtainment or use of the institution's
financial assistance or credit
Make or cause written inquiry of applicant's
protected classes
Section 9: adds "sexual orientation, gender identity
or expression" to the prohibitions against unlawful
practices by the state or its political subdivisions
Refusal or denial of any local, state, or federal
funds, services, goods, facilities, advantages, or
privileges
Circulation of discriminatory communication
implying refusal or denial of services
Section 10: adds "sexual orientation, gender identity
or expression" to the prohibitions against unlawful
practices in blockbusting, or practices by real estate
agents to close a transaction
Blockbusting: the practice of persuading owners
to sell property cheaply because of the fear of people
of another race or class moving into the neighborhood,
thus profiting by reselling at a higher price.
Section 11: defines "sexual orientation" and "gender
identity or expression"
sexual orientation: means heterosexuality,
homosexuality, and bisexuality.
Gender identity or expression: means having or
being perceived as having or expressing a gender,
self-image, appearance, or behavior, regardless of
whether that gender, self-image, appearance, or
behavior is different from that traditionally
associated with the sex assigned to that person at
birth.
3:18:10 PM
REPRESENTATIVE KREISS-TOMKINS referred to Ms. Holland's
statement as to how the EEOC adjudicates sexual orientation, or
gender identity [or expression] related employment
discrimination complaints and asked whether data relating to
Alaska for such complaints exist, and if so, to explain that
data.
MS. HOLLAND responded that she was unaware whether the EEOC has
that data, and she will research that issue.
3:18:56 PM
REPRESENTATIVE LEDOUX asked how, if at all, this bill may affect
intercollegiate or high school sports events as to transgender
men who may identify as women.
MS. HOLLAND replied that HB 184 includes the state and its
political subdivisions, which would include the Alaska public
schools. She said that she would research the question but
believes Alaska's school would be included within this policy
and the same concept would be applied.
REPRESENTATIVE JOSEPHSON added that his office would check, for
example, a test case with the Anchorage School District, and he
would not be surprised if its athletics office follows some sort
of protocol. He commented that he suspects there is enough
authority in this legislation to protect the interests to which
Representative LeDoux referred. While the issue is not directly
noted in the legislation, it is certainly within the spirit of
the legislation. It could be that some other community has a
protocol of some sort and Anchorage does not, but he tends to
think Anchorage may have a protocol, he offered.
3:21:12 PM
REPRESENTATIVE STUTES referred to the definition of employer and
noted that it appeared odd because the definition would exclude
organizations, such as the American Legion, Elks Club, or any
club along those lines.
MS. HOLLAND answered that in the event the organization is not
for-profit, the person in charge is not defined as an employer
within this area of statute.
CHAIR CLAMAN noted that, just this week, the Alaska State
Commission for Human Rights asked him why so many non-profits
are excluded.
REPRESENTATIVE STUTES remarked that some people in these types
of organizations are employees, such as bartenders, and she
finds it odd that they would be excluded.
REPRESENTATIVE JOSEPHSON added that when he taught
constitutional law, under Boy Scouts of America et al. v. Dale,
[530 U.S. 640 (2000)], United States Supreme Court Justice
William Rehnquist found that the Boy Scouts of America could
discriminate against a boy scout troop leader who was a gay man,
and United States Supreme Court Justice John Paul Stevens wrote
an important dissent. Since that time, he advised, the Boy
Scouts of America reversed its course and in effect took its
victory from the court and tore it up, saying that it would
admit "who we want to admit."
3:23:17 PM
REPRESENTATIVE LEDOUX noted that the protocol in the Anchorage
School District might be covered under the [September 2015,]
Anchorage Assembly Ordinance [AO-96, updating its non-
discrimination laws to include sexual orientation, or gender
identity]. She remarked that she wanted to be clear as to
whether the intent of this legislation, or the spirit of this
legislation, is that a transgender man who identifies as a woman
could compete in women's athletics.
REPRESENTATIVE JOSEPHSON responded that when pondering this
legislation, his thoughts were of other issues, such as a gay or
lesbian couple being able to rent an apartment or being treated
with respect and equality when applying for a job. While the
issue is not expressly covered in this legislation, he said he
could see a court ruling that based on common law, this bill's
successful passage, and the Anchorage ordinance, such a result
could occur. He acknowledged that he took Representative
LeDoux's point, he would look for a concrete answer, and related
that because Anchorage currently has an ordinance, it may not be
the best test because the Anchorage School District may feel
compelled to have the protocol he had addressed.
3:25:11 PM
REPRESENTATIVE EASTMAN asked the significance the Anchorage
Chamber of Commerce held in this presentation.
REPRESENTATIVE JOSEPHSON responded that, for him, it has
profound significance because it says that the folks on the
Anchorage Chamber of Commerce want to be on the side of
tolerance when it comes to the LGBTQ community.
3:26:22 PM
REPRESENTATIVE EASTMAN asked whether there was concern that the
bill's passage may result in a person who expresses as a female,
and yet has the physical attributes of a male, "would be not
able to be prohibited from competing" in women's boxing, for
example.
REPRESENTATIVE JOSEPHSON responded that the Anchorage School
District does not offer women's or men's boxing and opined that
women's boxing occurs in an amateur or professional status. He
related that he shares in the concerns about the outlying
hypotheticals that may or may not occur. Economically and
morally, he offered, his position is that those situations must
be worked through one at a time, otherwise the issue is
effectively abandoned and "we're just stuck."
3:28:19 PM
REPRESENTATIVE EASTMAN asked that due to reports of women being
on the receiving end of that sort of event taking place and
being severely injured, whether the goal should be to structure
this bill in such a manner that that does not take place in
Alaska.
REPRESENTATIVE JOSEPHSON referred to the Constitution of the
United States, Ninth Amendment, which read as follows:
The enumeration in the Constitution, of certain
rights, shall not be construed to deny or disparage
others retained by the people.
REPRESENTATIVE JOSEPHSON explained that the Ninth Amendment was
designed to point out that it is not possible to list everything
in the realm of human nature within the first ten amendments.
Similarly, he remarked, the legislature cannot possibly codify
every potentiality that may spin off from this legislation.
3:29:40 PM
CHAIR CLAMAN opened public testimony on HB 184.
3:30:15 PM
JENNIFER SMITH advised that she has been a resident of Juneau
since 1971, and she supports HB 184 because it extends Alaska's
anti-discrimination statutes to protect against discrimination
based upon sexual orientation, or gender identity. Ms. Smith
advised that she had served as a commissioned officer in the
United States Air Force for 13 years and entered the service
through the ROTC program at the Massachusetts Institute of
Technology (MIT). At the time of graduation, "I was deeply in
love" with another young woman, but the relationship was
eventually crushed under the weight of the "very real fear" of a
dishonorable discharge accompanied by a prison sentence in a
federal penitentiary should the relationship be discovered.
Thankfully, as a nation, society has progressed to the point
that all people are welcome to serve in the military without
regard to sexual orientation, or gender identity, and their
families are extended the same benefits as all other service
member families. She related that the nation has come so far
that it appears strange this issue is even up for debate.
However, she pointed out, given the recent state of
discrimination and discriminatory ordinances cropping up at the
local level, it is important to act together as a state to put
this issue to rest and help ensure that all Alaskans are treated
fairly. The United States Pledge of Allegiance is a testament
to this nation's values and it ends with the words "one nation
under God, indivisible, with liberty and justice for all."
Speaking as one who has been legally discriminated against, she
said she knows that no matter how fervently she believes in
these ideals, the fact is, those words ring hollow when she
knows that "all" does not include her. Historically, Alaska led
the United States in tackling discrimination when its
territorial legislature passed the Anti-Discrimination Act of
1945 [signed into law by Alaska Governor Ernest Gruening on
February 16, 1945] and, she pointed out, it was the first anti-
discrimination act in the nation. Ms. Smith asked that the
committee build on that leadership and consider the words
"liberty and justice for all," and vote yes to move HB 184
forward and help ensure that Alaska embodies the values of
"freedom and justice for all."
3:32:54 PM
JAN CAULFIELD advised that she has been a resident of Alaska
since 1979 and offered support for HB 184 because the State of
Alaska's non-discrimination laws should apply to everyone,
including its LGBTQ community members. She extended pride in
Juneau because it previously adopted these protections within
its own municipality. Frankly, she pointed out, it all appears
to be straight-forward because every person living in Alaska has
the same civil rights and should be covered under Alaska's non-
discrimination law. Ms. Caulfield stressed that by omitting
Alaskans from these non-discrimination laws due to the
circumstances of their personal and private lives, the state
implies that LGBTQ individuals are not worthy of their civil
right protections and thereby, deny their remedies. Extending
protections through HB 184 will solve this omission and relieve
the uncertainty and fear that is currently faced by LGBTQ
individuals and their families. This is the 21st Century, she
expressed, and Alaska needs to update its laws and protect all
of its residents equally. One of the reasons this legislation
is important to her, she advised, is that within her own family
group of generations of siblings, nieces and nephews, there are
transgender, non-binary gender, gay, lesbian, (indisc.) gender,
and heterosexual individuals. Her family members, she pointed
out, are all simply trying to do what people do, they are trying
to work, have safe homes, marry, raise children, and provide
financial security for each other and their children. It is her
belief, she related, that everyone deserves to have their civil
rights protected by our state government to ensure that those
goals can be achieved. She asked the committee to look at the
big picture that Representative Josephson spoke to in response
to some of the committee member's questions, and to not simply
focus on what appears to be smaller issues that may need to be
determined after the implementation of HB 184. Ms. Caulfield
reiterated her request that the committee not lose track of the
big picture which includes: employment, homes, finances, and all
matters an individual and a family may undertake.
3:35:17 PM
BRENDA BOWERS advised that she has lived in Juneau for
approximately 50-years, and presented pictures and offered a
short story as follows:
I have a picture here of two little girls, identical
twins, I am one. My sister became my brother. At
somewhere around 40-years old, he identifies as
transgender male. And, what I see before us right now
is, we have an issue where we have gender identity on
the table to be considered for non-discrimination. We
have gender expression and sexual orientation. So, to
sum up real quickly, sexual orientation: who do I want
to sleep with? Gender identity: who am I am? How do
I identify? And, gender expression, which opens up a
huge, huge, door. We all have gender expression, we
all have gender identity. Some of us, including
myself, have never had to question it, consider it. I
have the privilege of walking down the hall and going
to the bathroom without question, no one will stop me,
I don't have to fear for my safety. And, however, my
brother does. And, I also wanted to show this picture
because this -- these are the identical twins today.
So, I'm sorry for the people in the back who can't
see. We are still identical twins, we present very
differently, our gender expression is very different.
That's what you see and that's where a lot of
discrimination takes place. Gender identity, we don't
know unless we ask. Sexual orientation, we don't know
unless we ask. I really had the pictorial story in
mind and I think I've expressed that, and I believe
this is a basic human rights safety issue, as well as
just civil rights.
3:37:58 PM
LIN DAVIS advised that she lives in Douglas, is a retired state
employee, and worked at the Juneau Job Center for 15 years where
she often witnessed LGBTQ job discrimination and described it as
a wound to the soul. Last week, she said, she had an experience
that made her freshly proud to be an American, as follows:
I got to see Hamilton, the musical, in New York City.
And, the experience of disfavored groups, people of
color and immigrants who hammered out our democracy
was very inspiring. And, I have a question for you
who remain today, have you been able to take in your
American history classes an LGBTQ history survey going
back to the American Revolution? Anybody had that?
CHAIR CLAMAN explained that this is public testimony and
questions are not asked of the committee.
MS. DAVIS continued as follows:
It's rare that this is offered and that people don't
really know the wide scope of our judicial legal
history. You may remember Ted Olson, the famous
Republican lawyer who argued Gore v. Bush, [531 U.S.
98 (2000)] and won. And then, he studied American
LGBTQ history, discovered how troubling it was, and he
went on to work on [Defense of Marriage Act] DOMA,
Edie Windsor [United States v. Windsor, 570 U.S. 744
(2013)].
Right now, judicially, all of you have a profound
opportunity to help us follow in the footsteps of
Elizabeth, and Roy, ANS, ANB, and make us freshly
proud to be Americans, it's the right time to do the
right thing.
3:40:09 PM
ALYSON CURREY, Legislative Liaison, Planned Parenthood Votes,
Alaska, advised that Planned Parenthood Votes, Alaska is proud
to stand in support of HB 184. Quite simply, she said, all
people, no matter who they are or who they love, should be free
to live their lives without discrimination or fear of
discrimination based on their personal and private lives. As a
health care provider and employer, Planned Parenthood knows that
this legislation is good for public health and good for
business. Due to discrimination and fear of discrimination, she
pointed out, many gay and transgender people hide their
identities at work, are paid less, and have fewer employment
opportunities, and put these individuals at increased risk of
poor physical and mental health. Sexual orientation, gender
identity or expression have zero relationship to employability,
workplace performance, or even eligibility for housing, leasing,
loans, and credit, she remarked. She is proud, as others have
testified, to live in a city that has already taken steps to
support equal protection under the law for all people and it is
time for the state to catch up. She asked the committee to
support the passage of HB 184.
3:41:30 PM
MINDY O'NEAL asked the committee to support the passage of HB
184, because she wholeheartedly believes this bill will protect
the rights of LGBTQ individuals to work, live in a community,
and contribute to society. Earlier in this meeting and in other
conversations, she said she has heard that Alaska is not open
for business. In the event, it is truly the intent of this body
to stop the brain-drain and encourage people to remain in
Alaska, to have families, and work, then this state owes it to
its current and future residents to set them up to succeed here.
This bill, she described, is a step toward equality that says
Alaska is open for business and it welcomes all humans into "our
Alaskan family." She asked the committee to please help Alaska
join this century with this policy and allow an inclusive vision
for the future.
3:43:09 PM
MELANIE LINDHOLM advised that she represents herself and her
fianc? and they both identify as part of the LGBTQ community in
Alaska. She offered that they both have experienced
discrimination due to their identities, especially as to
employment, and she offered the following:
In 2015, after 13-years as a contractor at an Army
hospital, my fiance was fired for coming out as
transgender. The same year, I was denied employment
at UAS because it was known by the hiring committee
that my fianc? is transgender.
We support HB 184 because we believe that all Alaskans
should have employment protections. We support
equality of all citizens and value all Alaskans
regardless of their orientation, identity, or
expression. We are all humans deserving human rights
and equal protections.
3:44:09 PM
REVEREND LESLIE AHUVAH FAILS, Unitarian Universalist Fellowship
of Fairbanks, advised that she represents the Unitarian
Universalist Fellowship of Fairbanks, described that this church
serves a number of people from the LGBTQ community, and offered
the following:
In this season, I'm aware that today is Good Friday
and that we are in this season of waiting for
redemption, many people of faith all across the
country and the world. And so, knowing that there is
a number of people who are waiting with baited breath
and with nervousness to find out if this very
important piece of legislation will pass to help
protect them. I want to honor them and where they're
at and all the waiting that they have been doing for
equality to read just a very brief prayer. These are
words from my colleague the Reverend Brian Keely, "If
the spirit of life has one lesson for us, it is that
all life is beautiful, and we are each born into this
world who we are, tall or short, our own color of
skin, our own sexual orientation, or gender identity."
And, to paraphrase Libby Roderick, "How can anyone
ever tell us we are anything less than beautiful and
anything less than whole." I pray that this great
state and every state will remember their duty to
protect human life. I pray that we will enshrine
equal protection for all people into law. I pray that
those who are placed in grave danger simply for being
the person who they were born to be will find
equality. All human beings are born free, equal in
dignity and rights. They are endowed with reason and
conscience. May we act -- all acts towards one
another in affirmation of our common humanity. Amen.
3:45:54 PM
REBECCA DUNNE advised that she is a lesbian and is married to a
transgender man, which for the benefit of those who do not know,
it means he was born as an assigned female at birth and he now
lives legally and socially as a man. She related that LGBTQ
people have become more visible in Alaska and across the nation
in recent decades, although they have always "been here, but
we're less afraid to hide." Due to living more honest lives,
she advised that they are also open to discrimination in housing
and the workplace. Alaska, she said, has a patchwork of
municipal protections, and her Fairbanks landlord could still
decide to evict them for being or appearing gay, and her
husband's boss could fire him for being or appearing
transgender. She advised that they are looking to buy a house
in the upcoming months and there is a real fear that a lender
could deny financing due to her sexual orientation or her
husband's gender identity. She stressed that, "Fairbanks is our
home and we want to live and work here without fear of being
evicted or fired, the same as everybody else." This legislation
is about fairness, she described, and it protects thousands of
Alaskans and hurts none. She urged the committee to support HB
184.
3:47:42 PM
ALYSSA QUINPYNE offered support for this legislation because it
is imperative that the state adequately protect its constituents
and communities, and the LGBTQ community deserves that
protection. As it stands in the state, when an LGBTQ person is
fired, evicted, denied resources from a private, public, or
governmental agency, office, or department, due to their
identity, expression, or orientation, they have no legal
recourse to protect themselves and combat that harm, she
advised. As to Alaska's youth in school districts, their
parents have no legal avenue to protect their children and
themselves. Those people who choose to discriminate, and the
police officers who choose not to investigate these incidents,
are not held accountable for that discrimination and neglect,
she pointed out. Currently, there is nothing in the law that
specifically protects this community and this bill ensures that
the LGBTQ community will have protection and legal standing in
order to protect themselves and others. Thereby, she pointed
out, the passage of this legislation into law will hold those
who choose to discriminate accountable. As an ally, trainer,
and a community member, she related that it is depressing to see
her friends, family members, and co-workers, "my community"
suffer and live in fear. Especially, she pointed out, to see
Alaska's youth discriminated against without [a legal] avenue to
stand up and protect themselves. This state cannot continue in
this manner, she stressed, and urged committee's support for
this important and imperative bill because it is life saving and
ensures that the LGBTQ community is not only protected, but
honored and celebrated in every single way possible, as with
every other community.
3:50:09 PM
CHRIS EICHENLAUB asked the definition of LGBTQ.
CHAIR CLAMAN advised that LGBTQ stands for lesbian, gay,
bisexual, transgender, queer.
MR. EICHENLAUB advised that he is in opposition to HB 184. He
said he is seeing more on the news about people getting their
cars stolen "and stuff like that," and he suggested "we could
work on something more productive." He said he has not heard
about anyone in his conservative community experiencing
discrimination.
3:52:16 PM
MIKE COONS offered testimony as follows:
The President of the United States has gotten rid of
transgenders out of the military and that's happened,
so I want to clarify that for the speaker.
I strongly oppose HB 184 on constitutional grounds.
This bill adds sexual orientation, or gender identity
or expression, as an additional class into the powers
of the State Commission for Human Rights which
oversees and enforces Article 1, Section 3 of the
Alaska State Constitution. This is being attempted
when there is not change to Article 1, Section 3 of
our constitution. Pages 15 and 16 of the Alaska's
Constitution, A Citizen's Guide, clearly lays out the
meaning, history, and intent, specifically page 16,
paraphrasing for time:
The word "sex" was adopted by amendment in 1972.
Delegate [Mildred] Hermann argued that the word
"person" was intentionally used throughout the
constitution to refer to both sexes. To further avoid
the possibility of any sex bias in the interpretation
of the constitution, the delegates specified in
Article XII, Section 10 that personal pronouns be
construed as including either sex.
A person that is male or female has clearly defined
rights. If one is homosexual or identifies as another
sex, they are still a person. Biologically, one
cannot change their sex, one may decide to act and
dress differently in the sex they are, but their
biological sex is ingrained in their chromosomes no
matter how much surgery or hormones one takes. This
bill is desired by the progressive far left to demand
additional rights and protections to classes that are
not, nor ever were, considered by our Founding Fathers
without a constitutional amendment. ... I, as a
private citizen, have the right to discriminate
against someone or something that I find abhorrent,
i.e., associate within or out of my ... circle.
Employers have the right and duty to ensure a
workforce in an area that is free of stress and
strife.
3:55:13 PM
SERENE ROSE OHARA-JOLLEY advised that she supports HB 184, and
Alaska is her home where she is dedicated to helping make this
state a better place. She advised that she had worked as an
educator of young children with special needs for over 13-years
and she is currently teaching teachers at the University of
Alaska, Fairbanks (UAF). Although, she related, she does not
worry about losing her job at UAF, while previously living in a
rural community she had to hide her identity from employers and
landlords out of fear. In Alaska, for many people living in
rural communities, housing is connected to their employment and
she would have had to leave within 24-hours if she had been
fired. She described that forty-four percent of LGBTQ people
report discrimination at work, and it is unacceptable that she
could be denied employment, housing, or other services, in the
place she calls home due to her gender identity and who she
loves. She advised that she wanted to state on the record, "I
am queer and as a result of that I could be denied further
employment or kicked out my house in Fairbanks." She further
advised that the cities of Juneau, Sitka, and Anchorage passed
[ordinances] protecting the LGBTQ communities from
discrimination, which means over 340,000 Alaskans, almost one-
half of the state's population, already have protection. It is
time to stop with this patchwork approach to protections and let
all Alaskans know that they are valued, and she asked the
committee to please support HB 184.
3:57:18 PM
MAUREEN LONGWORTH, M.D., advised that she is a retired physician
and has worked in Alaska since 1992. Dr. Longworth stated that
there is very good evidence in the medical community that the
health of an entire community improves when rights are equal for
all in the community. The Alaska Association of Family
Physicians, the American Academy of Family Physicians, of which
she and many Alaska physicians are members, always support any
legislation that gives equal rights to, particularly, the LGBTQ
community. She advised that every medical study has shown that
these families provide healthy care and environments for their
families, but they can only do so when their rights are
protected by the government, of which everyone deserves, and no
one should be excluded. In addition, she pointed out, the
American Psychiatric Association, the American Academy of
Pediatrics, "I could go on and on and on," and the American
Medical Association all support this type of legislation before
the committee today. She described that any action other than
approving HB 184, would be moving backwards, and asked the
members to use their evidence-based judgement of which is the
judgement a person wants when being cared for by their
physician. She related that, "We're forced to use that, and
it's your duty, I feel, to also use that in voting yes to pass
this bill today."
3:59:58 PM
STEVE KOTEFF, Attorney, Alaska State Commission for Human
Rights, Office of the Governor, advised that he is the Human
Rights Advocate at the Alaska State Commission for Human Rights
and has been an attorney for the commission for approximately
20-years. Mr. Koteff related that he is speaking on behalf of
the commissioners who had considered the issue of providing
protection against discrimination on the basis of sexual
orientation, and gender identity in 2016. The commission passed
a resolution recognizing advancements in the law, both locally
and across the country, and directed the commission's staff to
draft proposed regulations to include sexual orientation, and
gender identity or expression within the meaning of the term
"sex" within the Alaska Human Rights Law, he explained. The
resolution also specifically called on the legislature to revise
AS 18.80 to expressly prohibit discrimination on this basis
because the commission is aware of the discrimination based on
sexual orientation, and gender identity or expression in Alaska.
The Alaska Equal Employment Opportunity Commission (EEOC) does
accept complaints on this basis and it estimates that
approximately two percent of all complaints allege
discrimination on the basis of sexual orientation, and gender
identity or expression, and according to the EEOC, two percent
is consistent with its nationwide statistics. In the event this
legislation becomes law, he remarked that the Alaska State
Commission for Human Rights would expect to investigate these
cases at a similar rate. Although the commissioners did not
ultimately approve language for a proposed regulation, the
commission's official position, since 1990, is that protection
on the basis of sexual orientation, or gender identity or
expression should be afforded equal protection under the Alaska
Human Rights Law. He informed the committee that the commission
asks that the legislature specifically amend AS 18.80 to include
these protections.
4:02:17 PM
REPRESENTATIVE LEDOUX asked whether he views this legislation as
a statewide mandate that a man who identifies as a woman be
allowed to participate in women's athletic activities.
MR. KOTEFF responded that that is a hard question to answer
legally, and although he has a lot of experience in the civil
rights arena, these protections are not covered under Alaska
law; therefore, he has less experience looking at the legal
analysis when it comes to protections for sexual orientation, or
gender identity or expression. Cases have been decided in
recent years throughout the country that do address some of
these issues. He remarked that he is not aware of caselaw that
provides protection with regard to Representative LeDoux's
sports question and issues of competitiveness. As an analogy,
he offered, it is known that official competitive sports bodies,
such as the International Olympic Committee, use specific tests
before determining who can compete in men's or women's
competitions. He related that he did not know whether that is
something the courts would consider under these legal
challenges, but he could look at it and get back to the
committee.
4:04:23 PM
REPRESENTATIVE LEDOUX remarked that she would like Mr. Koteff to
get back to the committee with the answer. She then asked
whether Mr. Koteff would view it, within the spirit of this
legislation, that that is something that should happen. In
other words, she offered, "would you want it to happen."
MR. KOTEFF answered that he is speaking today on behalf of the
commission and what he would want to take place is not within
his purview to say, and he could not speak to the spirit of the
legislation. He opined that all legislation includes the
potential for coverages that may not be intended or may not be
contemplated so he could not answer as to the spirit of the
legislation. There are many examples of people who are
transgender or have a specific gender identity being
discriminated against in these fields, but when discussing the
competitive sports area, that is something he is not familiar
with as a legal matter. He reiterated that he would look for
some of those cases to offer more information if Representative
LeDoux so desired.
4:05:42 PM
REPRESENTATIVE LEDOUX advised that she would like more
information as it appears there may not be a definitive answer
to the question regarding competitive sports. She asked whether
he saw any problem in making it quite clear that this
legislation does not mandate that men who identify as women be
permitted to compete in women's sports events.
MR. KOTEFF replied that he did not think, as a legal matter,
there would be any problem because it is within the
legislature's discretion to determine the limits of legislation.
He said that he is "not aware of any, perhaps, constitutional
limitation on such a limitation," and related that that was as
far as he could go in terms of his expertise with that answer.
4:07:12 PM
CAITLYN SHORTELL, Attorney, echoed Mr. Koteff's testimony and
noted that she is a private lawyer who represents members of the
LGBTQ community, and she had previously worked as the Human
Rights Advocate for the Alaska State Commission for Human
Rights. She related that she supports HB 184, and she has
supported this issue for as long as she could remember for a few
of the following important reasons: it is fair for every
Alaskans to have equal access to the law; and her view of the
spirit of this legislation is that it grants people, who are
members of a particular class, access to the Alaska Human Rights
Law so they can file a complaint. The myriad of situations that
may cause someone to file a complaint are unknown, and with the
aid of regulations and caselaw, it is up to the Alaska State
Commission for Human Rights to determine the laws that apply and
whether a complaint relies on those facts, she explained. It is
only fair and right, and arguably constitutional, she described,
that a whole group of people should not be denied access to the
commission and have a complaint accepted. This issue, she
pointed out, is about basic fairness, equal protection under the
law which many Supreme Court cases indicate is due to members of
this community, and for these reasons she urged the committee to
vote yes on HB 184.
4:10:27 PM
CHAIR CLAMAN, after ascertaining that no one wished to testify,
closed public testimony on HB 184.
4:10:33 PM
REPRESENTATIVE EASTMAN asked whether there are any attorneys the
committee can turn to in working out this bill.
CHAIR CLAMAN answered that he was sure an attorney from
Legislative Legal and Research Services could be available at
the next hearing, but no one is online today.
4:11:05 PM
REPRESENTATIVE EASTMAN asked the intent of this legislation with
regard to community groups, such as Big Brothers/Big Sisters,
because communities and cities have previously worked with those
organizations for grants and so forth. For example, he said,
say the Big Brother/Big Sister organization adopted a policy
against assigning a biological male who expressed as a female to
work within a little sister/big brother situation. He asked
whether the intent of this legislation is to tell that community
organization that the policy was prohibited activity due to
discrimination.
MS. HOLLAND reiterated that if the organization is not for-
profit, these requirements would not apply. Ms. Holland advised
that she was unsure whether Big Brothers/Big Sisters and
Representative Eastman's scenario is for-profit. She opined
that if the organization is not for-profit, it would be free to
discriminate on this basis, or any basis.
4:12:35 PM
REPRESENTATIVE LEDOUX related confusion about this non-profit
issue because HB 184 read that a non-profit employer is exempt,
except it was her belief that non-profit organizations, such as
the Elks, Moose, and Lion's Clubs, were all subject to the
Public Accommodations Law. When first arriving in Alaska, she
advised that these service clubs exempted women. Eventually,
the service clubs "gave up on their bylaws that did not allow
women" because they were losing the Public Accommodations Law
fight.
MS. HOLLAND related that she was confused by that issue as well,
and she had not heard about those situations.
REPRESENTATIVE LEDOUX advised that it was when dinosaurs roamed
the earth.
MS. HOLLAND advised that she would research whether incidents of
this nature had occurred in the not-for-profit realm, and
advised that she had been referring to the definition of
employer in this statute which explicitly exempts not-for-profit
clubs, social fraternities, and religious organizations.
Together with the other non-resolved issue discussed today, she
said she will research past situations and look for resolution.
4:14:38 PM
CHAIR CLAMAN asked whether it was Mr. Koteff's understanding
that non-profit organizations are not subject to the
jurisdiction of the Alaska State Commission on Human Rights.
MR. KOTEFF answered in the affirmative. In response to another
question, he informed Chair Claman that Providence Hospital is a
non-profit employer that is organized, in large part, for
charitable purposes, and it does not fall within the
jurisdiction of the Alaska Human Rights Law.
4:15:45 PM
REPRESENTATIVE LEDOUX asked that in the event a doctor or
medical provider was seeking employment at Providence Hospital,
which happens to be one of the biggest employers in the state,
that Providence Hospital could discriminate against the person
for race, religion, and so forth." Except, she commented, if it
was a "mom and pop" grocery store, it would be subject to civil
rights law. She described that that was mind boggling.
MR. KOTEFF answered that Representative LeDoux was absolutely
correct. The commission is trying to bring this issue to the
legislature's attention because it does see a lot of potential
violations falling through the cracks. He clarified that he is
not saying it is Providence Hospital, but there are "many, many,
many non-profit employers" out there.
MR. KOTEFF, in addressing the question about the various service
clubs, such as the American Legion or Elks Club, advised that
they are universally non-profit and typically organized for
charitable or educational purposes. Except, he explained, that
only applies to these organizations when they are employing
people, such as the bartender. For example, he offered, someone
who works at the Elks Club would not be protected, but they are
also places of public accommodation under the law. Therefore,
someone who wanted to come into one of those clubs as a member
of the public would be protected because there is no non-profit
exemption under the public accommodation statute, AS 18.80.230.
He explained that that is the difference.
4:18:00 PM
REPRESENTATIVE LEDOUX commented that this is confusing because a
person cannot walk into the Elks Club, for example, unless they
are either a member or a guest of a member. She asked whether
she was hearing correctly that if a person wants to become a
member of one of these service clubs, they are subject to this
law, but if a person is employed by the club or seeking
employment, they are not covered by this law.
MR. KOTEFF answered, "In a nutshell, yes."
REPRESENTATIVE LEDOUX commented, "Well, that's sure
interesting."
4:18:57 PM
REPRESENTATIVE EASTMAN referred to the discussion of Sec. 4 and
noted that it appears to exempt these organizations, except Sec.
6 brings them right back into it through public accommodation.
He asked about volunteers at these non-profits and if it is a
public accommodation, are the volunteers covered under these
prohibitions or do they get a pass.
MR. KOTEFF explained that when looking at a volunteer for any
organization, whether it is non-profit or for-profit, the law
essentially does not cover them in the employment context.
There is a lot of caselaw in the rest of the country regarding
volunteers and the commission tends to look to that caselaw in
enforcing the human rights laws. An employer/employee
relationship depends on there being some renumeration for
services, and when there is no renumeration, there is not that
type of relationship. Similar to an independent contractor who
would not be covered as well, obviously they are more likely
working for payment, but without that employer/employee
relationship, there is no coverage under the employment
protections of state law.
[HB 184 was held over.]