Legislature(2021 - 2022)GRUENBERG 120
02/09/2022 01:30 PM House JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| HB17 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 17 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 17-DISCRIMINATION: GENDER ID.;SEXUAL ORIENT.
1:36:43 PM
CHAIR CLAMAN announced that the only order of business would be
HOUSE BILL NO. 17, "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."
1:37:33 PM
REPRESENTATIVE ANDY JOSEPHSON, Alaska State Legislature, as
prime sponsor, introduced HB 17. He said that many states
protect the interests of sexual orientation and gender
expression of individuals in civil rights code, while Alaska, as
a state, does not. He added that, pertaining to lending,
housing, employment, and other areas, some municipalities have
protections, resulting in a "patchwork" of [expected] treatment
of individuals regarding their sexuality or gender identity. He
stated that the proposed HB 17 would expand the authority of the
State Commission for Human Rights ("commission") under Title 18
by adding the investigation of claims of discrimination based on
sexual orientation and gender identity. He explained that
previous versions of the bill have been heard, and U. S. Supreme
Court Justice Anthony Kennedy has ruled in Obergefell v Hodges
576 U.S. 644 (2015), that basic constitutional principles allow
for individuals of the same sex to marry.
1:42:09 PM
REPRESENTATIVE JOSEPHSON stated that U.S. Supreme Court Justice
Neil Gorsuch's opinion in Bostock v. Clayton County, 590 U.S.
644 (2020), has ruled that discrimination in employment because
of sexual orientation is unconstitutional. He explained that
the commission has already accepted an individual's claim of
discrimination regarding employment. He stated that HB 17 would
codify protections like the rulings found in Bostock v. Clayton
County, aligning with the current practice of the commission.
He explained that the commission is not permitted to award
punitive damages; however, it is allowed to enforce the law by
mediating a settlement prior to litigation.
1:47:40 PM
REPRESENTATIVE EASTMAN asked whether the commission has
interpreted the Bostock v. Clayton County ruling to apply to
claims beyond those pertaining to employment [discrimination].
REPRESENTATIVE JOSEPHSON, in response, expressed the belief that
the commission has expanded its interpretation beyond
[employment discrimination].
1:48:17 PM
MAX KOHN, Staff, Representative Andy Josephson, Alaska State
Legislature, on behalf of the prime sponsor, Representative
Josephson, presented the PowerPoint presentation, titled "HB 17:
Non-Discrimination Based on Sexual Orientation, Gender Identity
or Expression" [hard copy included in the committee packet]. On
slide 2, he pointed out that Territorial Legislation in Alaska
passed the Anti-Discrimination Act in 1945. This addressed
discrimination in public accommodations almost 20 years before
the national Civil Rights Act of 1964. He continued that today
race, religion, color, national ancestry, physical or mental
disability, age, sex, marital status, changes in marital status,
pregnancy, or parenthood are protected classes from
discrimination, and discrimination is prohibited in the areas of
employment, credit and financing, public accommodations, and the
sale, lease, or rental of property. He noted that the
commission deals with cases of discrimination in housing,
employment, and financing; however, members of the lesbian, gay,
bisexual, transgender, [and queer] (LGBTQ) community are left
without protections under the law.
MR. KOHN drew attention to the data on the slide addressing
LGBTQ discrimination in Alaska. He pointed out that this data
is similar to national data. He read a quote attributed to
Justice Gorsuch, as seen on slide 7, which read as follows
[original punctuation provided]:
"Today we must decide whether an employer can fire
someone simply for being homosexual or transgender.
The answer is clear. An employer who fires an
individual for being homosexual or transgender fires
that person for traits or actions it would not have
questioned in members of a different sex. Sex plays a
necessary and undisguisable role in the decision,
exactly what Title VII forbids."
MR. KOHN stated that HB 17 would codify current practices of the
commission into law.
1:52:19 PM
MR. KOHN drew attention to slide 10 and slide 11 which depict
the laws in Alaskan communities and laws around the nation which
protect against employment discrimination. He noted that only
12 states do not have protections explicitly in law against
employment discrimination. He stated that the federal Equal
Employment Opportunity Commission exists to remedy claims of
discrimination. He characterized the process as burdensome to
individuals and suggested that the state should become involved
on behalf of individuals. He then drew attention to slide 13
and explained how LGBTQ nondiscrimination policies are good for
commerce. He pointed out that 96 percent of top Fortune 500
companies include sexual orientation in their nondiscrimination
policies. He stated that economic benefits include higher
recruitment and retention; increased generation of ideas and
innovation; diversified consumer base; increased employee
productivity; securing more public sector clients; and improved
employee relations and morale. He expressed the opinion that
most Fortune 500 companies have these policies in place because
they are good for business.
MR. KOHN summarized the sectional analysis beginning on slide
15. He explained that HB 17 would add "sexual orientation,
gender identity or expression" to existing statute relating to
the commission. He stated that "public accommodation" is
defined in statute and includes businesses and public places.
He further stated that "sexual orientation and gender
expression" is also defined in statute.
1:56:35 PM
REPRESENTATIVE JOSEPHSON stated that he expected questions to
arise regarding faith-based organizations [pertaining to HB 17]
and stated that the U.S. Supreme Court Case Fulton v.
Philadelphia, 593 U.S. ___ (2021), had found that Catholic
Social Services in the City of Philadelphia was not obligated to
include same-sex couples in its foster care program. He
cautioned to keep in mind that the proposed legislation would
have "carve-outs" for religious exemptions.
1:58:39 PM
ROSE O'HARA-JOLLEY, Director, Planned Parenthood Alliance
Advocates Alaska, provided invited testimony on HB 17. [The
testifier identified by using the pronoun "they".] They
explained that protections against discrimination exist based on
race, religion, color, age, disability, and marital status;
however, protections do not extend to individuals who identify
as LGBTQ. They expressed the opinion that many employees hide
sexual orientation or gender identity, and many employers pay
individuals who identify as LGBTQ less, and these individuals
experience fewer employment opportunities than their non-LGBTQ
peers. They stated that 44 percent of LGBTQ residents in
Anchorage reported harassment; 16 percent reported that they
were forced to leave jobs because of harassment; 21 percent
reported having been turned down for a job; 18 percent reported
having been denied a promotion; and 15 percent reported having
been fired. The testifier identified as a member of the queer
community and, in doing so, was at risk of their job, their
housing, and discrimination in lending. They expressed strong
support for HB 17.
2:02:56 PM
REPRESENTATIVE KURKA questioned the "carveouts" for religious
exemptions in the proposed legislation.
REPRESENTATIVE JOSEPHSON responded that carveouts exist by
operation of case law. He explained that federal case law would
be applicable to courts in Alaska. In response to a follow-up
question, he responded that the ruling in Fulton v. Philadelphia
had been made by the U.S. Supreme Court, which is the highest
jurisdiction; thereby, above the jurisdiction of the Ninth
Circuit Court of Appeals.
MR. KOHN described the case in Alaska where a man was denied
lodging at a homeless shelter because he had a service animal.
He stated that the ruling of the court had found that the
shelter was not public accommodation because of its status as a
religious organization.
CHAIR CLAMAN added that the Ninth Circuit Court of Appeals is
bound as a lower court to the ruling of the U.S. Supreme Court.
2:07:16 PM
REPRESENTATIVE KURKA questioned the proposed protections in the
legislation regarding schools as public accommodation and the
use of gendered bathrooms and participation in sports.
REPRESENTATIVE JOSEPHSON, responding, expressed the opinion that
the commission would not likely have jurisdiction over this. He
stated that the bill would add the terms "sexual orientation"
and "gender identity or expression" as protected classes, which
would allow claims using these clauses to be investigated by the
commission regarding allegations on employment, housing, and
lending discrimination. In response to a follow-up question, he
explained that issues involving transgender athletes may be
based in confusion and consternation on the part of some
individuals. He drew the distinction that should the same
transgender person experience discrimination in the context of
employment, housing, or lending, discrimination would not be
permissible. He offered that AS 18.80 does not answer questions
regarding transgender students or athletes.
2:10:51 PM
REPRESENTATIVE EASTMAN asked Rose O'Hara-Jolley if they should
be fired due to gender identity, whether they could file a
complaint.
ROSE O'HARA-JOLLEY expressed the belief that the federal
employment law protects against discrimination for gender
identity, and this would apply to employers with 15 or more
employees. They suggested that the proposed legislation would
make it evident for all businesses and employers that this type
of discrimination would not be allowed, and a remedy would be
provided at the state level.
REPRESENTATIVE EASTMAN, [should HB 17 not pass], asked whether
that the previous example of discrimination would not be
considered by the commission.
2:12:07 PM
REPRESENTATIVE JOSEPHSON answered that, under the current
administration, the commission may investigate such claims of
discrimination. He cautioned that future administrations may
hold a different policy position and cease investigations. He
drew a comparison between the cases, Bostock v. Clayton County
and the Brown v. Board of Education, 347 U.S. 483 (1954), of
which the latter having been a case predicated on desegregation
of public schools and "it wasn't about water fountains." He
stated that the system of Jim Crow [laws] had subsequently
imploded. He expressed his appreciation for the administration
addressing the matters of alleged discrimination and postulated
that the policy "may not stick" in the future.
REPRESENTATIVE EASTMAN asked whether an individual who
experienced discrimination in pay [due to sexual orientation and
gender identity or expression] could pursue a claim of
discrimination with the commission.
REPRESENTATIVE JOSEPHSON answered yes and added that each case
is unique and would be subject to strong evidentiary
requirements, such as a case in which an exemplary employee was
repeatedly overlooked for promotions. In response to a follow-
up question, he stated that HB 17 would change this by codifying
[protections for sexual orientation and gender identity or
expression] into law, and the practice would evolve from case
law into code.
2:16:12 PM
REPRESENTATIVE EASTMAN referred to Section 11 of the proposed
legislation, which defines gender identity or expression. He
questioned whether the scope of the definition would be limited
to gender, as compared with the expression of self-image,
appearance, or behavior, for example.
REPRESENTATIVE JOSEPHSON answered that self-image relates to
gender and pointed to Section 11, line 9. He reminded the
committee that strong evidentiary requirements would need to
exist. In response to a follow-up question, he stated that the
definition would not exclude gender-fluid individuals. He
continued to explain that a claim, being subject to strong
evidentiary requirements, would require there to be a genuine
and bona fide persistent self-image, worthy of respect. He
noted that Justice Gorsuch opined that discrimination against an
individual for sexual identity would be categorized as
discrimination against an attribute of sex. He stated that the
court's decision has resulted in a change to the current
administration's policy to investigate claims. He argued that
codifying these protections would prevent a reversal of the
current practice.
2:20:39 PM
REPRESENTATIVE KURKA drew attention to sections of the bill
which refer to "public accommodation" and suggested that public
restrooms in public schools would be categorized as this. He
questioned the proposed bill's effect when an individual who
identifies as a woman, but is biologically male, enters a
women's restroom.
REPRESENTATIVE JOSEPHSON answered that a student would not be an
employee of a school. He suggested that the Human Rights
Commissioner should be consulted to discuss the matter more in
depth.
CHAIR CLAMAN, because the ruling in Bostock v. Clayton County
had been on [discrimination] in employment, questioned whether
it is only confined to this original complaint. He posited if
the matter of housing been brought before the court in the
complaint, whether the ruling would apply equally to
[discrimination] in housing.
REPRESENTATIVE JOSEPHSON answered yes, as Justice Gorsuch had
conveyed that the ruling is based on the Civil Rights Act of
1964.
REPRESENTATIVE EASTMAN asked whether the sponsor would support
an amendment which would explicitly exclude participation in
women's sports [of a transgender female].
REPRESENTATIVE JOSEPHSON, responding, expressed opposition to
such an amendment. He expressed the opinion that this would be
a distraction [from the intent of the bill]. He pointed out the
controversy regarding the eligibility of a collegiate athletic
because of the athlete's [gender] status.
2:25:01 PM
REPRESENTATIVE EASTMAN asked how the bill would align with
Article 1, Section 25 of the Alaska State Constitution, which
refers to marriage.
REPRESENTATIVE JOSEPHSON expressed the opinion that this clause
would be no concern with the proposed bill. He stated that the
United States Constitution had treated slaves as three-fifths of
a person [and was later overturned.] He characterized the
clause in the Alaska State Constitution as the most current
historical reflection of the will of the people regarding
marriage, and this would have no effect on the proposed bill.
REPRESENTATIVE EASTMAN asked, since Representative Josephson had
claimed that this bill would not be affected by the
constitutional clause, what other parts of the constitution
would not be binding.
CHAIR CLAMAN interjected that Article 1, Section 25 of the
Alaska State Constitution has been ruled unconstitutional by the
federal court. He expressed the opinion that other sections of
the constitution are not germane to the bill under
consideration.
2:27:22 PM
REPRESENTATIVE EASTMAN, in regard to the protection of self-
image, asked whether uniform [requirements] and school and
workplace dress codes would be impacted by the proposed
legislation.
REPRESENTATIVE JOSEPHSON, responding, expressed the
understanding that employers may still require reasonable and
appropriate dress codes and uniforms. He suggested that the
protection would still exist if an employer required an
individual thought to be a man, to dress like a man, as this
protection is supported by Bostock v. Clayton County.
REPRESENTATIVE EASTMAN stated that the United States Military
has only two types of uniforms "as far as gender goes" and asked
whether an employer in Alaska requiring an employee to select
only one of two [types of available uniforms] would be violating
the rights protected in the proposed bill.
REPRESENTATIVE JOSEPHSON, responding, expressed the opinion that
this example would not be violating the proposed legislation.
2:29:28 PM
REPRESENTATIVE EASTMAN, concerning the proposed legislation,
asked whether a violation would result in a case where a
retailer offered a class solely to members of the transgender
community.
REPRESENTATIVE JOSEPHSON answered that he could not conceive of
the scenario as being related to [one's] employment.
CHAIR CLAMAN announced that HB 17 was held over.
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB 17 v. A 2.18.2021.PDF |
HJUD 2/9/2022 1:30:00 PM HJUD 3/14/2022 1:00:00 PM HJUD 3/28/2022 1:00:00 PM |
HB 17 |
| HB 17 Sponsor Statement v. A 2.9.2022.pdf |
HJUD 2/9/2022 1:30:00 PM HJUD 3/14/2022 1:00:00 PM HJUD 3/28/2022 1:00:00 PM |
HB 17 |
| HB 17 Sectional Analysis v. A 2.9.2022.pdf |
HJUD 2/9/2022 1:30:00 PM HJUD 3/14/2022 1:00:00 PM HJUD 3/28/2022 1:00:00 PM |
HB 17 |
| HB 17 Supporting Document - Bostock v. Clayton County - Oyez 6.15.2020.pdf |
HJUD 2/9/2022 1:30:00 PM HJUD 3/14/2022 1:00:00 PM HJUD 3/28/2022 1:00:00 PM |
HB 17 |
| HB 17 Supporting Document - Bostock v. Clayton County - US Supreme Court 6.15.2020.pdf |
HJUD 2/9/2022 1:30:00 PM HJUD 3/14/2022 1:00:00 PM HJUD 3/28/2022 1:00:00 PM |
HB 17 |
| HB 17 Supporting Document - Alaska State Commission for Human Rights Facebook Post 12.2.2020.pdf |
HJUD 2/9/2022 1:30:00 PM HJUD 3/14/2022 1:00:00 PM HJUD 3/28/2022 1:00:00 PM |
HB 17 |
| HB 17 Supporting Document - Alaska State Commission for Human Rights Resolution 11.2.2016.pdf |
HJUD 2/9/2022 1:30:00 PM HJUD 3/14/2022 1:00:00 PM HJUD 3/28/2022 1:00:00 PM |
HB 17 |
| HB 17 Supporting Document - Alaska Public Media Article - History of AK LGBT Rights 8.18.2015.pdf |
HJUD 2/9/2022 1:30:00 PM HJUD 3/14/2022 1:00:00 PM HJUD 3/28/2022 1:00:00 PM |
HB 17 |
| HB 17 Supporting Document - 2015 AK Transgender Survey 2.7.2022.pdf |
HJUD 2/9/2022 1:30:00 PM HJUD 3/14/2022 1:00:00 PM HJUD 3/28/2022 1:00:00 PM |
HB 17 |
| HB 17 Supporting Document - Human Rights Campaign Employment Laws Map 1.19.2022.pdf |
HJUD 2/9/2022 1:30:00 PM HJUD 3/14/2022 1:00:00 PM HJUD 3/28/2022 1:00:00 PM |
HB 17 |
| HB 17 Supporting Document - Anchorage LGBT Discrimination Report by Melissa Green - November 2011 2.7.2022.pdf |
HJUD 2/9/2022 1:30:00 PM HJUD 3/14/2022 1:00:00 PM HJUD 3/28/2022 1:00:00 PM |
HB 17 |
| HB 17 Supporting Document - LGBT Workplace Policies - Williams Institute - October 2011 2.7.2022.pdf |
HJUD 2/9/2022 1:30:00 PM HJUD 3/14/2022 1:00:00 PM HJUD 3/28/2022 1:00:00 PM |
HB 17 |
| HB 17 Supporting Document - 2010 LGBT Census Snapshot - Williams Institute 2.7.2022.pdf |
HJUD 2/9/2022 1:30:00 PM HJUD 3/14/2022 1:00:00 PM HJUD 3/28/2022 1:00:00 PM |
HB 17 |
| HB 17 Fiscal Note GOV-HRC 2.7.2022.pdf |
HJUD 2/9/2022 1:30:00 PM HJUD 3/14/2022 1:00:00 PM HJUD 3/28/2022 1:00:00 PM |
HB 17 |
| HB 17 PowerPoint Presentation 2.9.2022.pdf |
HJUD 2/9/2022 1:30:00 PM HJUD 3/14/2022 1:00:00 PM |
HB 17 |