"All people are not heterosexual. Heterosexuality is not superior and is not the norm by which all other sexual orientation and gender identities are measured." --Burnaby, B.C. Schools Draft Policy #5.45

Friday, June 3, 2011

Equal Access to Intrastate Commerce Act

A city in a conservative state passed an ordinance requiring businesses contracting with the city not to discriminate against both transgender and gay people.  The state, under the guise of promoting business efficiency through uniform laws, responded by enacting a statute prohibiting cities from offering greater protection against discrimination than that offered by state law.  The fact scenario recalled the circumstances that arose in the 1990s in another state, in which the US Supreme Court struck down a state constitutional amendment aimed at limiting local governments from protecting homosexuals from discrimination.  That Supreme Court decision offers hope that the new statute may be struck down as well.

1. The City Ordinance

In 2009, Nashville, Tennessee added "sexual orientation" and "gender identity" to its list of protected categories in city employment.  In April 2011, another ordinance added sexual orientation and gender identity to the city's procurement code--the municipal laws governing the relationship between the city and private business contracting to do work for the city. (Nashville Municipal Code 4.28)  The ordinance mentions the conduct of a particular contractor as a reason the passage of the ordinance.  The code required that any private business contracting with the city had to submit an affidavit saying that it did have any discriminatory employment policies or practices.  (Nashville Municipal Code 4.28.020)     

Because of the new state law, "gender identity" and "sexual orientation" have already been removed from the online copy of the Nashville procurement code, but here is how (part of it) it looked:

"It is declared to be the policy of the metropolitan government that any person contracting for building and construction projects or furnishing supplies or services to the metropolitan government, and to which any funds of the metropolitan government are expended, shall establish equal employment opportunities for all individuals so that no individual shall be excluded from employment by such person because of race, creed, color, national origin, age, sex, gender identity, or sexual orientation, and to ensure compliance with all applicable laws concerning the employment of individuals with disabilities." (Ordinance No. BL2011-838)

2. The State Law

The Equal Access to Intrastate Commerce Act (EAIC) limits local government in Tennessee from prohibiting discrimination beyond what's allowed by state law:

A. The law adds a definition of "sex" to the definitions section of Tennessee human rights statutes.  Sex "means and refers only" to "the designation of an individual person as male or female on the individual's birth certificate". (Link to the definitions section: Tennessee Statutes 4-21-102)

B. The law says local governments may not "impose or make applicable" anti-discrimination laws that vary from the definition of "discriminatory practices" in 4-21-102, or that vary from the way terms (such as "sex") are defined in Tennessee human rights law.

(See the EAIC in its entirety here.)

My paraphrase: Transgender people are not protected by state law, and the state won't allow cities to protect them either.

(Price Waterhouse v. Hopkins-inspired question: If "sex means and refers only" to birth certificate designations of male or female, is Tennessee saying it's okay to permit discrimination against heterosexuals based on sex stereotypes?)  

3. The Religious Right

Leaders of conservative religious organizations supported passage of EAIC.  The Southern Baptist Convention and the Tennessee Baptist Convention made the following arguments:

A. The rights of Christian business owners are infringed by Nashville's ordinance.

B. "Elevating sexual orientation and gender identity as a protective class is wrong." Sexual minorities are not "immutably distinctive".  Protecting sexual minorities as a class of people "trivializes" and "mitigates" the civil rights of all people.

C. Uniformity of discrimination law means businesses don't have to deal with a confusing patchwork of different laws in different jurisdictions.

The first argument is the worn-out claim that one's religious beliefs trump other people's equal participation in the marketplace.  Having religious beliefs doesn't entitle you to define your freedom not associate with others so expansively as to limit the employment opportunities of people you dislike. 

The second argument almost makes it sound like the religious right would be okay with discrimination against heterosexuals.  

The third, obviously, is a pretext.  Are there other areas of municipal law affecting business that vary from city to city?  You'd guess there are many.  Is the state going to make all these uniform by state statute?  Is having to file an affidavit with a bid for a Nashville city contract really a burden on intra-state business if you have to file one anyway whether the procurement code covers gender identity or not?  Does the Southern Baptist Convention usually spend a lot of time worrying about inconsistent business laws across different jurisdictions as an impediment to commerce?  (Or just this one time, since it's about transgender people?)      
4. Romer v. Evans, 517 U.S. 620 (1996)

Summary: Local governments in the state of Colorado, such as Aspen, Boulder, and Denver, passed municipal laws protecting homosexuals and bisexuals from discrimination in employment, housing, and public accomodations.  In 1992, Colorado held a statewide referendum that added "Amendment 2" to the state constitution.  Amendment 2 invalidated all of these local anti-discrimination laws, and prohibited any part of the state government from anti-discrimination action as well.  Homosexual private citizens and cities whose laws had been invalidated brought a lawsuit against the state to have Amendment 2 struck down.  The trial court stayed the enforcement of Amendment 2.  On appeal, the Colorado Supreme Court held that Amendment 2 was subject to strict scrutiny, the most demanding level of review under equal protection, and remanded the case to the trial court.  Back in the trial court, the state argued (under the strict scrutiny standard) that the law was narrowly tailored to serve compelling state interests, but the trial court ruled Amendment 2 invalid.  The Colorado Supreme Court affirmed, on appeal. The state appealed to the US Supreme Court.

Holding: Affirmed, on different grounds.  Amendment 2 is unconstitutional.  It doesn't even meet the least demanding level of review under equal protection--it lacks a rational relationship to legitimate state interests, if that.

Amendment 2 didn't take away special rights given to homosexuals.  Amendment 2 singles them out and deprives them of the rights others already have and take for granted. The local ordinances sought to remedy the discrimination faced by gays and lesbians in housing, employment, insurance coverage: "These are protections taken for granted by most people either because they already have them or do not need them; these are protections against exclusion from an almost limitless number of transactions and endeavors that constitute ordinary civic life in a free society."

Amendment 2 "defies" typical equal protection analysis.  Equal protection analysis recognizes that laws by nature make distinctions among people, but if a law doesn't infringe on a fundamental right or if it is not aimed at a suspect class, then it is permissible if it reasonably related to a legitimate governmental purpose.  Amendment 2, however, identifies people "by a single trait" and denies them protection "across the board".  "It is unprecedented".

Amendment 2 seems to have come from "animus" toward homosexuals.  The "bare desire" to harm a "politically unpopular group" of people is not a "legitimate governmental interest".    One rationale cited for Amendment 2 was freedom of association, for employers and landlords whose religious beliefs were opposed to homosexuality.  The state also argued that fighting discrimination against homosexuals reduced the amount of state resources available to fight other forms of discrimination.  "The breadth of the amendment is so far removed from these particular justifications that we find it impossible to credit them. We cannot say that Amendment 2 is directed to any identifiable legitimate purpose or discrete objective. It is a status-based enactment divorced from any factual context from which we could discern a relationship to legitimate state interests; it is a classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit."

Romer is on Google, here.

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The reasoning in Romer lines up with some of the facts surrounding the passage of EAIC, including the belief of the Southern Baptists that religious convictions of business owners and their freedom of association are infringed by the ordinance, and the misunderstanding evident in the Southern Baptists' argument that the ordinance gives sexual minorities "special rights" by "elevating" them to a special status.   

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