Quips & Quotes

2010 Legislative Preview

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In just a few days after this edition of QSaltLake hits the streets, the Utah Legislature will convene for its 2010 general session. As always, the next two months will feature a number of bills seeking to affect Utah’s gay, lesbian, bisexual and transgender population, for good and for ill. Here are the ones that have been announced so far.

Fair Workplace and Housing

In 2009, Salt Lake City made history when its council unanimously passed two ordinances prohibiting the city’s landlords and employers from discriminating on the basis of sexual orientation or gender identity. In the early days of 2010, Salt Lake County passed an identical ordinance, and Park City has promised to do the same soon. Although more municipalities are becoming open to the idea of having such laws on the books, Rep. Christine Johnson will still be aiming to pass a gay and transgender-inclusive housing and employment law this session. This will mark the third year the Salt Lake City Democrat has proposed such a law—her bill failed to make it to the House floor for debate in both 2008 and 2009.

While Johnson said that she considered dividing the workplace and housing components of her bill into two separate pieces of legislation, in much the way Salt Lake City did with its ordinances, in part because of challenges the bill’s housing component may face from legislators who work in the housing industry.

“The harder hurdle for us on a statewide basis is the housing component, because we have so many landlords and real estate agents and property owners in our legislature,” she said. “They really have heartburn over putting even a guideline of nondiscrimination [based on sexual orientation or gender identity] in their business practice.”

Ultimately, however, Johnson decided to keep her bill the same as in its two previous incarnations.

“If it’s the will of the committee to divide and handle them separately, so be it, but I’d rather preserve the original integrity of the bill,” she said.

At press time, Johnson’s bill was still being written. Before it is enrolled and made available for viewing on the Legislature’s Web site, it must be sent to the Legislator’s fiscal analyst to determine what the bill, if passed, would cost the state.

“That expense is primarily going to come out of the Attorney General’s office, since it will be their responsibility to defend against any litigation against the state as an employer,” she explained. However, she noted that the bill will likely be available for perusal by Jan. 25, the session’s opening day, at the latest.

At press time, Johnson said she had not secured a Senate co-sponsor for the bill, but that “conversations are still underway” with two Senate Republicans about signing their name to the document.

“I’m more concerned about how the Proposition 8 movie and the rallies and the influence of national organizations will impact my ability to advance my two pro-equality bills,” said Johnson, referring to the documentary 8: The Mormon Proposition which will show at the Sundance Film Festival this month, and the several rallies local gay rights activists such as Jacob Whipple are planning around its various screenings.

“I’m expecting that it’s going to be very tense [on the Hill] not only because of the current state of the state with our budget and revenue shortfall, but it’s going to be a challenging year to temper the political pressure outside of the Capitol a from that film,” she continued, noting that she had no plans even to see the film at Sundance. “It’s going to be a mess. I just want to stay clear of it and focus on my legislative responsibilities. It’s not going to be an opportunity for me to wear my activist hat.”

While some legislators have responded favorably to the idea of extending a Salt Lake City-like ordinance statewide (including, most amazingly, anti-gay West Jordan Republican Sen. Chris Buttars), many have said that Johnson’s bill will likely not pass in 2010.

“Nothing has changed,” House Majority Leader Kevin Garn, R-Layton, told The Salt Lake Tribune recently, when asked if Johnson’s legislation had a good chance of passing. “The result will probably be the same as last year.”

Garn did say, however, that the Legislature would likely not overrule Salt Lake City’s ordinances, which are scheduled to take effect April 2. Indeed, at press time, no legislator had entered such a bill. Nevertheless, Senate President Michael Waddoups, R-Taylorsville, told the paper that other municipalities’ enthusiasm to pass similar ordinances was cause for concern.

“If everybody’s going to do it, we’d just as soon weigh in as wait. It’s harder to overturn 20 [ordinances like Salt Lake City’s] than to overturn two or three,” he said.

As in years past, statewide gay and transgender rights organization Equality Utah will sponsor Johnson’s bill. In fact, in 2009 her legislation was part of the group’s Common Ground Initiative, a set of four bills aimed at expanding protections to gay, lesbian, bisexual and transgender Utahns in such additional areas as probate rights and inheritance laws.

Despite the reappearance of Johnson’s bill — one of the two returning to the Hill this January, Executive Director Brandie Balken said Equality Utah would continue its more recent strategy of approaching municipal governments to enact ordinances similar to Salt Lake City’s. When the session ends, she added, Equality Utah will also be continuing conversations with Gov. Gary Herbert about extending healthcare benefits to non-spousal adult designees — including gay and lesbian partners — of state employees.

If Johnson’s bill does pass, Balken said Equality Utah would “begin the business of reaching out to community and letting them know how these protections function and the mechanism for them to access them.”

Wrongful Death

Another bill from last year’s Common Ground package that will reappear on the Hill this January is one that would grant people in same-sex relationship rights to bring suit if their partner died due to negligence or medical malpractice. The bill, which does not bear Equality Utah’s imprimatur this year, was first introduced in 2007 by then-senator Scott McCoy, who resigned last December. Just weeks after being elected as McCoy’s replacement, Sen. Ben McAdams, D-Salt Lake City, has announced that he will take up the bill for its fourth year.

“Well currently, if my wife died because a drunk truck driver hit her and killed her, I could sue the negligent driver for wrongful death and get compensation, because we’re inter-dependent,” McAdams told gay rights Eric Ethington, owner of gay rights blog “PRIDE in Utah” on Jan. 10. “But a same-sex couple or any other inter-dependent but unmarried adults wouldn’t be able to make that claim. The genius of this bill is that it’s not just about same-sex partners, but all inter-dependent adults like mothers and daughters living together.”

By contrast, the 2009 incarnation of McCoy’s bill sought only limited protections for same-sex partners, such as allowing them to join a suit only if the deceased’s children, family or former spouses to allowed it.

McAdams has made the bill one of his priorities this session, he said, because people in non-spousal relationships currently cannot seek any other form of redress when their partners die due to medical malpractice or negligence.

“[T]his bill highlights that there are many responses the legislature has given that these things [i.e. protections in cases of wrongful death] can be accomplished in contract,” he said. “But how often do people go out and do the contract? How often are people going to have what they need in place for an emergency? My wife and I are both attorneys and we haven’t even had a contract put together. So there’s a need to change the law. But it’s more than that, a wrongful death is different than hospital visitation, in that there’s no way to contract for it.”

“This is something the Republicans can afford to support, both ethically and politically. It’s a good bill,” he concluded.

At press time, McAdams’ bill had yet to be enrolled. McAdams did not respond to a message left by QSaltLake seeking further comment.

Don’t Ask, Don’t Tell

In addition to her fair employment and housing bill, Johnson also plans to introduce a House Joint Resolution asking the U.S. Congress to overturn the military’s infamous Don’t Ask, Don’t Tell policy by passing the Military Readiness Enhancement Act of 2009. The military’s policy, which prohibits gay, lesbian and bisexual servicemembers from serving openly, is routinely used to dismiss any who come out or whose sexuality is discovered. Johnson’s resolution is enrolled and numbered as HJR 004.

“We know that over 13,000 men and women have been discharged because of Don’t Ask, Don’t Tell, and there are 65,000 gay and lesbian sevicemembers on active duty,” said Johnson, adding that the government has spent up to $1.2 billion to “investigate, eliminate and replace qualified and patriotic servicemembers” under the policy, which has been in effect since the Clinton administration.

“It’s cost prohibitive to keep this in place,” she said.

Along with Don’t Ask, Don’t Tell’s high financial and personal cost to the military and to the nation at large, HJR 004 also mentions the troop shortages to which the policy has contributed, the fact that openly gay servicemembers are allowed to serve in the militaries of 24 other countries, and the fact that transgender servicemembers are also harassed under the policy “on the basis of nongender-conforming [sic] behavior.”

Johnson said she drafted the resolution in honor of a friend, a servicemember who committed suicide after being discharged under Don’t Ask, Don’t Tell. She said she looks forward to sharing a few facts about the woman’s experience of being “invisible” in the military when introducing the resolution.

When it comes to getting straight legislators to understand the harm policies like Don’t Ask, Don’t Tell cause, Johnson said, “like any issue that involves a minority community there’s a huge education hurdle.” Nonetheless, she added that she was “very hopeful that because our legislature has been so supportive of the military particularly because of Hill Air Force Base [which is located in Utah] that they’ll seriously consider” what she has to say.

“It’s a resolution,” she added. “It’s requesting, it’s not a mandate or a statute. It’s nothing more than a suggestion that Congress do this and act quickly. I don’t know how my colleagues are going to feel, but I will have that conversation and I will talk about my friend who took her life and what she told me.”

10th Amendment

One possible, though perhaps counterintuitive, pro-gay topic before the Legislature this session is the Constitution’s 10th Amendment, which states that all legal powers not reserved by the federal government or prohibited to the states, are reserved for the states, or to the people. No less than five resolutions in support the concept of states’ rights, or encouraging the federal government to repeal laws that infringe upon them, are currently enrolled in the session.

Although the concept of states’ rights has often been used against gay, lesbian, bisexual and transgender people — as in the passage and reinforcement of the Defense of Marriage Act, which allows states not to recognize same-sex marriages performed in other states — David Nelson, a community activist and the owner of Stonewall Shooting Sports of Utah said that these resolutions may be helpful to gay and transgender Utahns. In explaining why, cited a recent lawsuit filed by Massachusetts Attorney General Martha Coakley which states that the commonwealth’s right to marry same-sex couples is protected by the 10th Amendment.

“In states like Utah, that would likely mean that marriage would unfortunately be defined as it always has been defined by many state legislatures,” he said. “In states like Massachusetts, that would also mean that the federal DOMA could be nullified by a state. … In some states, the consideration is because of what they see as overreaching by the federal government regarding the current federal health-care bill or bank bailouts. In other states, the consideration is because of what they see as overreaching by the federal government regarding the same-sex marriage or medical marijuana. Whatever reason Utah’s majority chooses, supporting a strengthened 10th Amendment will aid our gay-friendly states far more than a weakened amendment.”

“Bottom line, however, is that the 10th Amendment protects every state against unconstitutional federal imposition,” he continued. “The exercise of the 10th Amendment protections in Utah will do no more harm to gay couples and families than has already been done by our state, but it will help bolster the arguments of states like Massachusetts to expand marriage where we cannot.”

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