Legislature(2019 - 2020)GRUENBERG 120
03/28/2019 03:00 PM STATE AFFAIRS
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HB 82-DISCRIMINATION: GENDER ID.;SEXUAL ORIENT. 4:34:18 PM CO-CHAIR KREISS-TOMKINS announced that the final order of business would be HOUSE BILL NO. 82, "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." 4:35:01 PM The committee took a brief at-ease at 4:35 p.m. 4:35:50 PM REPRESENTATIVE ANDY JOSEPHSON, Alaska State Legislature, relayed that HB 82 would add to Title 18 that it is the policy of the State of Alaska not to discriminate based on sexual orientation, gender identity, or expression; in the event someone does, he/she can be brought before the Alaska State Commission for Human Rights (ASCHR); and failing conciliation, he/she can be sued for various remedies. Several states have similar laws in place as does the City and Borough of Juneau and the Municipality of Anchorage. Recently the Fairbanks City Council passed a similar ordinance by a vote of 4-2; it was vetoed by the mayor, who asked that the question be placed on a ballot. Representative Josephson added that the issue of anti- discrimination addressed under HB 82 is the "last frontier" of the civil rights movement. He maintained that since Alaska is The Last Frontier it is appropriate that it add this protection for the tens of thousands of people in Alaska who regard themselves as within this population. REPRESENTATIVE JOSEPHSON referred to slide 1 of the PowerPoint presentation to review the goals of the proposed legislation, which read as follows: • To add "sexual orientation" and "gender identity or expression" to the list of classes protected under Alaska law • To ensure that all Alaskans enjoy the right to participate in commerce and active lives in our communities • To strengthen Alaska's civil rights statutes • To shape Alaska into a shining model for protection of human rights • To protect one of the fastest growing communities of individuals in Alaska from discrimination and afford them the same protection as all other Alaskans REPRESENTATIVE JOSEPHSON added that the protections would relate to housing, lending, employment, and the like. He stated that after the U.S. Civil Rights Act [of 1964] became law, the U.S. Supreme Court in Heart of Atlanta Motel, Inc. v. United States wrote that non-discrimination represents good commerce. REPRESENTATIVE JOSEPHSON turned to the timeline on slide 2, entitled "Alaska's Civil Rights History in Brief," and noted that during the Thirtieth Alaska State Legislature, 2017-2018, the House State Affairs Standing Committee advanced a similar bill, [House Bill 184], by a bipartisan vote. He pointed out that the Alaska Equal Rights Act of 1945, championed by Elizabeth Peratrovich, predates the U.S. Civil Rights Act; he maintained that HB 82 would be an extension of that effort. 4:42:09 PM REPRESENTATIVE JOSEPHSON moved on to slide 3, entitled "Policy Overview: Local Trends," and noted the three large communities of Alaska recognizing protections of lesbian, gay, bisexual, transgender, transsexual, queer/questioning (LGBTQ) citizens and the efforts of non-governmental organizations (NGOs) listed on the slide, which read as follows: Alaska Communities that protect LGBTQ citizens: square4 Anti-discrimination ordinances are in place in 3 Alaska communities: square4 Juneau (Adopted August 2016) square4 Anchorage (Adopted September 2015 and upheld by Anchorage voters April 2018) square4 Sitka (Adopted December 2017) square4 Anti-discrimination ordinance passed but vetoed by mayor: square4 Fairbanks square4 NGOs and community organization working to end discrimination in Alaska include: square4 Fair Anchorage Campaign by the ACLU Alaska square4 Human Rights Campaign Alaska square4 Identity Alaska square4 Alaskans Together for Equality square4 Pride Foundation REPRESENTATIVE JOSEPHSON mentioned that the City of Bethel has an ordinance prohibiting discrimination for employment based on sexual orientation. REPRESENTATIVE JOSEPHSON referred to slide 4, entitled "Policy Overview: Other States with Similar Laws," and pointed out Alaska's sister states who have followed the proposed policy: California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, Utah, Vermont, Washington, Washington, DC, and Wisconsin. REPRESENTATIVE JOSEPHSON provided a sectional analysis of HB 82 by reviewing slides 5-12 shown below, [original punctuation provided]. He discussed Section 1 on Slide 5, which read as follows: SECTION 1: ADDS 'SEXUAL ORIENTATION' AND 'GENDER IDENTITY OR EXPRESSION' TO THE LIST OF CATEGORIES PROTECTED BY THE HUMAN RIGHTS COMMISSION THE ALASKA STATE COMMISSION ON HUMAN RIGHTS PASSED A RESOLUTION IN 2016 REQUESTING THIS CHANGE BUT LACK AUTHORITY TO IMPLEMENT IT ON THEIR OWN REPRESENTATIVE JOSEPHSON relayed that there are two areas of law that one would see such codification: Title 6 of the Alaska Administrative Code (AAC), relating to how cases are brought before ASCHR; and Title 18 in Alaska Statutes, which is the substance of existing state law naming discriminatory practice violations. He relayed that Title 18 also lists the remedies, such as restraining orders and backpay. REPRESENTATIVE JOSEPHSON continued with slides 6, 7, and 8 to describe Sections 2, 3, 4, and 5 of the proposed legislation, which read as follows: SECTION 2: ADD CATEGORIES OF 'SEXUAL ORIENTATION' AND 'GENDER IDENTITY OR EXPRESSION' TO THE LIST OF PROTECTED CLASSES WHICH THE LEGISLATURE FINDS TO BE A CAUSE FOR PUBLIC CONCERN SECTION 3: ADDS 'SEXUAL ORIENTATION' AND 'GENDER IDENTITY OR EXPRESSION' TO THE LIST OF CATEGORIES THAT THE STATE PROTECTS AGAINST DISCRIMINATION IN EMPLOYMENT, CREDIT AND FINANCING, PLACES OF PUBLIC ACCOMMODATION AND MATTERS RELATED TO PROPERTY SALE, LEASE AND RENTAL IN CURRENT ALASKA STATUTE OTHER PROTECTED CLASSES ARE HIELDED FROM DISCRIMINATION BASED ON RACE, RELIGION, COLOR, NATIONAL ORIGIN, AGE, SEX, PHYSICAL OR MENTAL DISABILITY, MARITAL STATUTES, CHANGES IN MARITAL STATUS, PREGNANCY, OR PARENTHOOD SECTION 4: ADDS 'SEXUAL ORIENTATION' AND 'GENDER IDENTITY OR EXPRESSION' TO THE CATEGORIES OF PROTECTED CIVIL RIGHTS 'CIVIL RIGHT IS AN ENFORCEABLE RIGHT OR PRIVILEGE, WHICH IF INTERFERED WITH BY ANOTHER GIVES RISE TO AN ACTION FOR INJURY. DISCRIMINATION OCCURS WHEN THE CIVIL RIGHTS OF AN INDIVIDUAL ARE DENIED OR INTERFERED WITH BECAUSE OF THE INDIVIDUAL'S MEMBERSHIP IN A PARTICULAR GROUP OR CLASS? CIVIL RIGHTS REFER TO LEGAL PROVISIONS THAT STEM FROM NOTIONS OF EQUALITY.'* *HTTPS://WWW.LAW.CORNELL.EDU/WEX/CIVIL_RIGHTS SECTION 5: PROHIBITS UNLAWFUL EMPLOYMENT PRACTICE BASED ON 'SEXUAL ORIENTATION' AND 'GENDER IDENTITY OR EXPRESSION' A 2011 SURVEY OF LGBTQ INDIVIDUALS IN ANCHORAGE FOUND THAT 62% OF RESPONDENTS HAD HIDDEN THEIR SEXUAL ORIENTATION, GENDER IDENTITY OR GENDER TRANSITION AT WORK REPRESENTATIVE JOSEPHSON relayed that Section 6 addresses religious exemption; in the area of religious organizations and ministerial jobs, the proposed bill would have no application. Section 6 is described on slide 9, which read as follows: SECTION 6: PROVIDES A RELIGIOUS EXEMPTION FOR EMPLOYMENT RELATIONSHIP BETWEEN A RELIGIOUS ORGANIZATION AND A MINISTER EMPLOYED BY THE RELIGIOUS ORGANIZATION REPRESENTATIVE JOSEPHSON referred to Section 7 on slide 10, which read as follows [original punctuation provided]: SECTION 7: PROHIBITS UNLAWFUL PRACTICES IN PUBLIC ACCOMMODATIONS BASED ON 'SEXUAL ORIENTATION' OR 'GENDER IDENTITY OR EXPRESSION' LGBTQ INDIVIDUALS IN A 2011 ANCHORAGE SURVEY WHO WERE DENIED ACCOMMODATIONS: ? 13.1% DENIED SERVICE IN A RESTAURANT ? 6% DENIED USE OF PUBLIC RESTROOM ? 3.4% DENIED ROOM IN HOTEL ? 8.2% DENIED MEMBERSHIP TO GYM OR FITNESS CLUB REPRESENTATIVE JOSEPHSON reminded the committee of the history of certain people in Southeast Alaska being denied accommodations due to the color of their skin. REPRESENTATIVE JOSEPHSON moved on to slide 11 to describe Section 8, which read as follows: SECTION 8: PROHIBITS UNLAWFUL PRACTICES IN THE SALE OR RENTAL OF REAL PROPERTY BASED ON 'SEXUAL ORIENTATION' OR 'GENDER IDENTITY OR EXPRESSION' ? A 2015 SURVEY OR TRANSGENDER INDIVIDUALS IN ALASKA REPORTED THAT 32% OF RESPONDENTS EXPERIENCED SOME FORM OF HOUSING DISCRIMINATION IN THE PAST YEAR AND 43% HAVE EXPERIENCED HOMELESSNESS AT SOME POINT IN THEIR LIVES ? A 2011 SURVEY OF LGBTQ INDIVIDUALS IN ANCHORAGE FOUND THAT 18.7% OF RESPONDENTS HAD BEEN HARASSED BY A LANDLORD OR OTHER TENANT BECAUSE OF THEIR SEXUAL ORIENTATION OR GENDER IDENTITY/EXPRESSION REPRESENTATIVE JOSEPHSON reviewed Section 9 on slide 12, which read as follows: SECTION 9: PROHIBITS UNLAWFUL PRACTICES IN FINANCING AND EXTENDING CREDIT BASED ON 'SEXUAL ORIENTATION' OR 'GENDER IDENTITY OR EXPRESSION' A 2011 SURVEY OF LGBTQ INDIVIDUALS IN ANCHORAGE FOUND THAT 3.7% OF RESPONDENTS WERE DENIED A LOAN OR LINE OF CREDIT WHEN OTHERWISE QUALIFIED REPRESENTATIVE JOSEPHSON briefly described Section 10 on slide 13, which read as follows: SECTION 10: PROHIBITS UNLAWFUL PRACTICES BY THE STATE OR ITS POLITICAL SUBDIVISIONS BASED ON 'SEXUAL ORIENTATION' OR 'GENDER IDENTITY OR EXPRESSION' INCLUDES ALL STATE AND LOCAL GOVERNMENT AGENCIES AND WILL END DISCRIMINATION IN SCHOOLS, IN COURTS, BY POLICE AND PUBLIC SAFETY OFFICIALS AND BY GOVERNMENT SERVICES AND AGENCIES 4:48:29 PM ELISE SORUM-BIRK, Staff, Representative Andy Josephson, Alaska State Legislature, referred to slide 14 to describe Section 11 and to explain the concept of "blockbusting." The slide read as follows: SECTION 11: PROHIBITS UNLAWFUL PRACTICES IN BLOCKBUSTING, OR PRACTICE BY A REAL ESTATE AGENT TO CLOSE A TRANSACTION BASED ON 'SEXUAL ORIENTATION' OR 'GENDER IDENTITY OR EXPRESSION' 'BLOCKBUSTING' MEANS AN UNLAWFUL DISCRIMINATORY PRACTICE BY A REAL ESTATE BROKER, REAL ESTATE SALESPERSON, OR EMPLOYEE OR AGENT OF A BROKER OR ANOTHER INDIVIDUAL, CORPORATION, PARTNERSHIP, OR ORGANIZATION FOR THE PURPOSE OF INDUCING A REAL ESTATE TRANSACTION FROM WHICH ANY SUCH PERSON OR ITS STOCKHOLDERS OR MEMBERS MAY BENEFIT FINANCIALLY, TO REPRESENT DIRECTLY OR INDIRECTLY THAT A CHANGE HAS OCCURRED OR WILL OR MAY OCCUR FROM A COMPOSITION WITH RESPECT TO RACE, RELIGION, COLOR, OR NATIONAL ORIGIN OF THE OWNERS OR OCCUPANTS OF THE BLOCK, NEIGHBORHOOD, OR AREA IN WHICH THE REAL PROPERTY IS LOCATED, ANDTO REPRESENT DIRECTLY OR INDIRECTLY THAT THIS CHANGE MAY OR WILL RESULT IN UNDESIRABLE CONSEQUENCES IN THE BLOCK, NEIGHBORHOOD, OR AREA IN WHICH THE REAL PROPERTY IS LOCATED, INCLUDING THE LOWERING OF PROPERTY VALUES, AN INCREASE IN CRIMINAL OR ANTISOCIAL BEHAVIOR, OR DECLINE IN THE QUALITY OF THE SCHOOLS OR OTHER FACILITIES (AS 18.80.30 (1)) MS. SORUM-BIRK relayed that blockbusting is the practice of persuading owners to sell property cheaply due to the fear of people of another race or class moving into the neighborhood, thereby, creating a margin of profit based on reselling at a higher price. This was seen historically in certain neighborhoods in which a real estate agent would attempt to convince a resident to sell his/her house at less than the assessed value due to an African American moving into the neighborhood. The real estate agent could, thereby, turn a profit. REPRESENTATIVE JOSEPHSON added that ASCHR has stated that although there may be remedies [for discrimination based on gender identity or expression], such as through the U.S. Equal Employment Opportunity Commission (EEOC), the proposed legislation is the remedy that ASCHR must have to protect the civil rights of these individuals. REPRESENTATIVE LEDOUX asked how HB 82 would affect women's shelters that did not want to accept people who identify as women but are not biologically women. She asked additionally how HB 82 would affect sports teams; for example, a man who identifies as a woman and wants to complete in women's sports. REPRESENTATIVE JOSEPHSON expressed his belief that the proposed legislation would not address domestic violence shelters but would research this issue. He said that a sporting event is not the subject of the proposed legislation; nothing in HB 82 would affect eligibility for a sporting event. 4:52:39 PM REPRESENTATIVE WOOL asked whether there has been a documented case of blockbusting regarding the LGTBQ community. REPRESENTATIVE JOSEPHSON referred to the November 2011 Anchorage survey, entitled "Anchorage LGBT Discrimination Survey: Preliminary Report," included in the committee packet, and cited the following statistics: 10.1 percent of the LGBT community was denied a lease when otherwise qualified; 20.9 percent were turned down for a job when otherwise qualified; and 73.1 percent reported having to hide their sexual orientation, gender identity, or gender transition to avoid employment discrimination. He mentioned that he does not have any specific information on Representative Wool's question. MS. SORUM-BIRK relayed that she is not aware of cases [of blockbusting] in Alaska; however, there have been cases nationally. REPRESENTATIVE SHAW offered his understanding that the intent of HB 82 is to prohibiting discrimination "across the board" and not just for housing. REPRESENTATIVE JOSEPHSON replied that under HB 82, the broad civil rights intent described in the preamble language would be advanced through the protection of LGBTQ against discrimination in housing, employment, lending, and public accommodation. 4:56:05 PM REPRESENTATIVE SHAW stated that his comment concerns the title of HB 82, which read: FOR AN ACT ENTITLED '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.' REPRESENTATIVE SHAW maintained that the title of HB 82 is very broad and the stated goals of the legislation, on slide 1, do not mention housing. He asked whether HB 82 would cover broad community issues. REPRESENTATIVE JOSEPHSON answered that like the U.S. Civil Rights Act, the proposed legislation would require that in employment or business, the merchant must subscribe to the greater tenant of the Act; however, every action of an individual would not be monitored for politically correct (PC) compliance with some greater civil rights tenant. He stated that HB 82 would add "sexual orientation" and "gender identity or expression" repeatedly to existing law; it would add this class to the many classes already protected - physical and mental disability, marital status, race, religion, color, national origin. Beyond that there would be no expansion of the civil rights [U.S.] Code [Title 42, Chapter 21]. REPRESENTATIVE LEDOUX asked for a legal opinion on women's shelters and sports teams in respect to the proposed legislation. She expressed her understanding that it is not illegal to discriminate against a person if there is a rational basis for doing so unless the person is in a protected class; race, religion, and national origin have always been those protected classes; and to discriminate against someone in a protected class requires a compelling state interest. She said that her concern is that adding "sexual orientation" and "gender identity or expression" puts these categories into the protected class, which would require a compelling state interest and everything else that follows. REPRESENTATIVE JOSEPHSON responded that in the case of gender, it is not a compelling interest but an important interest - or a middle tier test; therefore, women are not as protected as a racial minority. He agreed that "compelling interest" is the test; under HB 82, the classifications [of sexual orientation and gender identity or expression] would be added to the protected class in the ASCHR code; the Alaska State Supreme Court would recognize that when applying a tough test. He acknowledged that the test could be overcome. [HB 82 was held over.]