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2011 legislative preview

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Last year brought unprecedented victories to Utah’s lesbian, gay, bisexual, transgender and queer community in the form of 10 municipal ordinances prohibiting housing and employment discrimination on the basis of sexual orientation and gender identity. As the 2011 general Legislative Session opens, however, the community will need to work to safeguard these protections and to make further advances. QSaltLake is happy to present this guide to what you can expect in the coming two months.

Housing and Employment

The push for a statewide law that would protect employees and tenants from discrimination on the basis of sexual orientation and gender identity began in 2008 with a bill by then-Rep. Christine Johnson. Titled “Antidiscrimination Act Amendments,” her legislation was part of the Common Ground Initiative, a set of four bills sponsored by statewide gay and transgender rights group Equality Utah, that sought more protections for lesbian, gay, bisexual and transgender people.

Despite receiving widespread support from the lesbian, gay, bisexual and transgender community, Johnson’s bill failed to make it to the House floor that year, and in 2009. In 2010, Johnson did not run the legislation as part of an agreement with Republican leaders. As part of this agreement, all gay and transgender-related bills were put on hold in exchange for allowing Salt Lake City’s own gay and transgender-inclusive nondiscrimination ordinance to stand.

A total of 10 Utah municipalities have now enacted similar ordinances, which forbid landlords with four or more units and employers with 15 or more employees from firing, refusing to hire, harassing or evicting people based on actual or perceived sexual orientation or gender identity. Religious-owned organizations are exempt.

Johnson, who is openly lesbian, did not seek another term and moved out of state last summer to accept a job as executive director of Equality South Carolina. This year, her bill has been taken up by Sen. Ben McAdams, D-Salt Lake City. McAdams replaced openly-gay Sen. Scott McCoy in late 2009 and won the seat on his own right during last year’s election.

McAdams, a straight, married member of the LDS Church, said that he agreed to take on the bill because of his background with Salt Lake City’s ordinances. As an assistant to Salt Lake City Mayor Ralph Becker, he spent a great deal of time answering legislators’ questions about what the capital’s ordinances would and would not do.

“I feel like I have a rapport with my Republican colleagues about this issue and know some of their concerns, and where they might be inclined to agree and where their disagreements are,” he said.

The fourth version of the bill, said McAdams, will be a little different from Johnson’s, which he described as taking “more of a circuitous path” to seeking protections.

“My approach is that we can take a much cleaner approach to this,” he said. “Utah has an anti-discrimination law in its code. We’re just inserting sexual orientation and gender identity to the list of [its] enumerated protections.”

At press time, McAdams said that he had not drafted the bill and would like to get more feedback from the community “to see if there are ways we can compromise, to accomplish my goals and resolve concerns of other parties who may be opposed [to the bill].”

And so far, McAdams has said that he has received a wide range of feedback on the legislation.

“It ranges everywhere, from people who are supportive … to people who aren’t convinced there’s a problem [with job and housing discrimination against lesbian, gay, bisexual and transgender people]. And then at the other end there are people who are opposed to the entire premise of the bill,” he said.

Shortly before Christmas, Grand County became the 10th Utah municipality to sign on to the nondiscrimination ordinances. At that time, Senate President Michael Waddoups told The Salt Lake Tribune that McAdams’ was “running a risk” by entering his bill.

“I think that will be a real acrimonious debate — whether it will be [expanded] statewide or prohibited,” Waddoups told the paper.

This and past statements by legislators, as well as a number of canceled bills from last session that targeted Salt Lake City’s ordinances, has lead many members of the local lesbian, gay, bisexual and transgender community to worry that this session will also see bills forbidding municipal governments from acting protections like those in Salt Lake City.

These concerns have lead activists like Eric Ethington to organize “This Is Our Voice,” a rally scheduled for the session’s Jan. 24 opening. The purpose of this rally, he said, is to show legislators that a majority of Utahns favor these protections. Indeed, a 2010 poll by The Salt Lake Tribune found that 70 percent of Utahns did.

“I haven’t heard it firsthand, but I have heard rumors that there are people who don’t like what Salt Lake City started and what other cities have followed and would like to see these [ordinances] overturned,” said McAdams, adding that he had not yet seen any bills seeking to do this.

He said that he would like to have a dialogue with those who oppose these protections.

“I think there is room in our Utah community to offer protections at work and at home for members of the gay community that doesn’t compromise the values of other members of the Utah community,” he said. “I think we can have protections and I think we can value religious liberty at the same time.”

Wrongful Death

McAdams will also run a bill seeking to allow same-sex partners and adults dependent on a non-spousal adult to sue in cases of wrongful death.

The first bill of this kind was introduced by then-Sen. Scott McCoy in 2007 and has changed drastically over the years that it has appeared before Senate committees, where it has always been kept from making it to the floor.

“This one is one that I think just makes sense,” said McAdams. “It reflects that in our Utah community we have families of different make ups and backgrounds and the law should reflect that.”

Although the bill has not yet been drafted, McAdams said that it will state that dependent same-sex partners and an adult in a dependent, non-marital relationship can sue if the individual upon whom they are dependent dies due to negligence or recklessness. If an individual can provide proof that he or she was in a financially interdependent relationship with the deceased individual, he or she can then sue for lost income.

“What the bill would propose is that we recognize families where the relationship is marriage, but we should also recognize [other] financially interdependent relationships, whether they are gay families or elderly sisters who never married and live in a relationship where they’re dependent on each other’s income,” he said.

The bill would require individuals to produce proof of such things as joint bank accounts, shared rent or mortgage before a suit could be made.

Second Parent Adoption

Since 2000, unmarried Utah couples have been unable to legally adopt children. This, of course, includes same-sex couples who are forbidden from marrying both by Utah law and its Constitution. In 2008, Rep. Rebecca Chavez-Houck sought to change this.

That year, the Salt Lake City Democrat ran a bill that would have repealed the 2000 law as part of Equality Utah’s Common Ground Initiative. However, her legislation was defeated in committee that year and in 2009. It was also tabled last year as part of the same legislative compromise that effected Johnson’s anti-discrimination bill.

During that session, Chavez-Houck said that her bill would undergo a significant change. Rather than seek adoption rights, it will now seek to secure rights for non-biological parents who cannot adopt.

“My dream would be to repeal what we had passed in 2000,” she said. “But the challenges I ran into [with this bill] during the first years running it told me I needed to see if there were other ways to fight this one piece at a time.”

In 2007, the Utah Supreme Court handed down a controversial ruling in the case of two lesbian parents who split up after agreeing to conceive and raise a child together. In that case, Jones v. Barlow, the court said that non-biological, non-adopted parents were essentially legal strangers to their children. In doing so, they overturned a lower court’s judgment that the doctrine of in loco parentis (Latin for “in place of a parent”) meant that individuals acting in the role of a parent had rights and responsibilities to their children.

If passed, Chavez-Houck’s bill would change that. It would, she said, give a biological parent the power to designate an individual with whom he or she wishes to parent a child. That individual would then be able to adopt the child.

Although polls have shown that the majority of Utahns are uncomfortable with same-sex couples adopting children, Chavez-Houck noted that “they seemed to be more comfortable about an individual saying I want to co-parent with someone else.”

“I hear the horrific stories of where a child knows two individuals and the biological mom or dad dies and this other partner who this child knows has no legal right to that child,” she said. “I can’t imagine being in that situation, having lost one parent and the other parent isn’t your parent. I think that’s a horrible thing to do to a family.”

She noted that current Utah law also affects straight couples who are not married, as well as grandparents who wish to adopt their grandchildren but cannot.

“If we’re all about parental rights in this state, which often times I hear, why can’t we look at [this situation] from this perspective?” said Chavez-Houck.

An identical version of Chavez-Houck’s bill will be offered to the Senate by Minority Leader Ross Romero. The purpose of the dual bill, both legislators said, is to see if the Senate might be willing to consider the issue if the House does not.

“I thought we don’t even have a sense of what the Senate will do with this issue, so I talked to Rebecca about running it and starting in the Senate,” said Romero, a Salt Lake City Democrat. If Chavez-Houck’s bill makes it out of committee, Romero said that he will be its Senate sponsor, and vice versa.

“We want there to be an option for parents to designate who is the best parent for their child and who would be the best co-parent for their child,” he said.

At this time, Chavez-Houck and Romero said that they are finalizing their bills’ language.

“It’s a work in progress that should be ready to be advanced at the beginning of the session,” said Romero.

He said that he was not sure which Senate committee would take on the bill if it makes it out of the Rules Committee, but noted that Government Operations and Judiciary were two possibilities.

Anti-Bullying and Harassment

In 2007, the Utah Legislature passed a law mandating that Utah schools adhere to a basic code prohibiting bullying, harassment and hazing. But today, said Brandie Balken, executive director of Equality Utah, fewer than 40 percent of Utah’s schools have an accessible anti-bullying policy.

“Meaning it’s not on their websites or in their student handbooks,” she explained. “How will students know what their rights are?”

Last year, several high-profile suicides of students made anti-gay bullying a much-discussed topic in local and national news. Before that, the 2007 Massachusetts Youth Risk Survey determined that lesbian, gay and bisexual youth were up to four times more likely to attempt suicide than their heterosexual counterparts (the study did not include transgender students).

A number of Utah parents would like the Legislature to help these numbers go down.

“My experience has been that we need to do everything we can to raise awareness of how bullying and harassment of youth is everywhere, the school hall, the school class room, the locker room, the phone, the radio, the television and in the mall,” said Kathy Godwin, president of the Salt Lake City chapter of Parents, Families & Friends of Lesbians and Gays. “We can no longer dismiss these actions as ‘kids will be kids, and these realities will toughen our youth to be resilent adults.’”

During the past few months, Godwin and several parents have been working together to encourage the Legislature to enforce the 2007 statue in order to “clearly communicate to students, staff and families on the anti-bullying and anti-harassment regulations and expectations for recourse.”

“[T]his is a community push …  parents, friends, employers, teachers, community leaders, and politicians,” said Godwin. “I feel the attitude will change if we begin to set foundational frameworks in which to empower administrations on how to help teachers communicate to students, parents, families and staff on how to counter bullying and harrassement.”

One school district has changed its policies to explicitly protect lesbian, gay, bisexual and transgender students, faculty and staff. During its last meeting in 2010, the Salt Lake City School Board added protections based on sexual orientation and gender identity to its nondiscrimination codes.

While Sen. Chris Buttars, R-West Jordan, did not mention the board’s policy change in a recent speech to members Eagle Forum, he nonetheless told the ultra-conservative group that state school boards were encouraging students to “question absolutes.”

“By accepting that, there’s no God because he deals in absolutes,” Buttars told KSTU Fox 13 News. “This is an entire program to bring America down and I want to tell you right now it’s well entrenched in Utah.”

Buttars has enrolled SJR 1 “Joint Resolution on State Board of Education Authority,” which would make the State Board of Education’s control of Utah’s public education system contingent on statue. And while the resolution does not specifically mention school anti-bullying policies that include gay and transgender people, some members of Utah’s lesbian, gay, bisexual and transgender community believe the resolution’s purpose is to prohibit school boards from enacting such policies.

“Senator “black babies are dark and ugly things” Chris Buttars was recently named as chair of the State Public Education committee, despite his call in 2010 to eliminate the 12th grade as “unnecessary,”” wrote activist Eric Ethington on his blog, PRIDE in Utah, referring to Buttars’ infamous 2007 comparison of a bill he did not like to “a black baby … a dark, ugly thing.”

“It appears he plans to use his latest position of power as much as possible in his war against civil rights” Ethington’s post continued. “His proposed resolution, SJR 1, strips the State School Board of the power to make changes to their policies unless they are already provided by statute. In other words, take away the protections for straight and LGBT kids from bullying, and the non-discrimination rules for district employees.”

Ethington said that Buttars’ resolution would be a key focus of the planned “This Is Your Voice” rally, which is scheduled for the session’s opening on Jan. 24.

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