Indiana Senate Bill 100 – Indiana GOP’s other attack on transgender Hoosiers

Update: Indiana Senate Bill 344 has just be introduced to the state legislature, and it would supercede this bill and strip out ANY protections for transgender Hoosiers, sending gender identity issues to a summer study committee. We will be writing about this new bill shortly.

Authored by Sen. Travis Holdman, SB100 was introduced on January 5th and referred to Committee on Rules & Legislative Procedure. As currently written, the bill does not actually protect LGBT Hoosiers in an real way, and it contains sections that attack transgender Hoosiers and make their lives significantly more difficult.

Download and read the current full text of the bill here on our website: SB0100.01.INTR.pdf or see the version on the state legislature’s website. The version on the state legislature website will be updated as the bill moves through the legislative process.

DIGEST
Civil rights. Prohibits discriminatory practices in acquisition or sale of real estate, housing, education, public accommodations, employment, the extending of credit, and public contracts based on military active duty status, sexual orientation, or gender identity. Provides protections for religious liberty and conscience. Preempts local civil rights ordinances that conflict with the state civil rights law. Provides that the provisions of this act are nonseverable. Repeals a provision that indicates that local entities may adopt civil rights ordinances that differ from state law.

How it harms Transgender Hoosiers

Two sections of the bill affect trans Hoosiers disproportionately.

Exemptions for Bathroom Use

Even thought it’s supposed to be a non-discrimination bill, SB100 has a huge number of exemptions that allow discrimination, and on page 5 is this one that allows for discrimination against transgender people in bathrooms and locker rooms:

31 (i) It is not a discriminatory practice or unlawful separation or
32 segregation under this chapter for a person to:
33 (1) maintain separate restrooms, shower facilities, dressing
34 facilities, and other similar facilities;
35 (2) establish, use, and enforce rules and policies related to the
36 use of restrooms, shower facilities, dressing facilities, and
37 other similar facilities; or
38 (3) establish, use, and enforce dress code rules and policies;
39 based on sex, sexual orientation, or gender identity.
40 Accommodation of individuals based on sex, sexual orientation, or
41 gender identity does not require the building of new facilities or the
42 renovation or other alteration of existing facilities.

This would allow any business with public restrooms or locker rooms, and any employer who maintains restrooms or locker rooms for their employees to use to set their own policies about who is allowed to use certain restrooms, and how people are expected to dress in their business. Transgender people are then subject to the whims of whomever owns a bathroom and can’t decide for themselves to use facilities that match their gender identity. Additionally – everyone – transgender people or otherwise – is subjected to employers defining how people are allowed to dress. If an employer decides all women must wear skirts in their workplace, that is consistent with this law.

This provision essentially makes SB100 a “Transgender Bathroom Bill” like Senate Bill 35 or like many of the bathroom bills introduced to state legislatures around the United States in the past year.

This bill is not as extreme as Senate Bill 35 which criminalizes use of restrooms or locker rooms by transgender people as a Class A misdemeanor, but it does take away any autonomy from transgender Hoosiers to decided for themselves about how to handle basic human functions.

Maintaining bodily autonomy is an essential component of basic human dignity. Deciding how to handle fundamental human functions of your own person should be a right recognized and respected by all people.

Additionally, this provision won’t stand up in court, from analysis by Brynn Tannhill:

The Department of Labor (DOL) recognizes discrimination against transgender people as sex discrimination under Title VII of the 1964 Civil Rights Act. Some of the most recent case law also finds that restricting bathroom access for transgender workers is a form of sex discrimination. Similarly, the Department of Education recognizes transgender people as being covered by the provisions for sex discrimination under Title IX.

Crude attempts to define Gender Identity

The other passage of particular concern to transgender Hoosiers is on page 10 of the bill:

27 (u) “Gender identity” means a person’s gender-related identity,
28 appearance, or behavior:
29 (1) whether or not that gender-related identity, appearance,
30 or behavior is different from that traditionally associated with
31 the person’s physiology or assigned sex at birth; and
32 (2) that can be shown by providing:
33 (A) medical history, care, or treatment of the
34 gender-related identity occurring in the period of twelve
35 (12) months preceding the act or omission that is the
36 subject of a complaint under this chapter; or
37 (B) consistent and uniform assertion of the gender-related
38 identity in the period of twelve (12) months preceding the
39 act or omission that is the subject of a complaint under this
40 chapter, if the assertion is sincerely held, part of the
41 individual’s core identity, and not being asserted for an
42 improper purpose.

Lawyer Doug Masson points out that the section from 32 on imposes something that no other protected class must submit to:

“(SB 100) imposes a burden of proof of sorts on gender identity claims. You have to have medical proof consistent with your asserted gender-identity within the past 12 months and/or a consistent and uniform assertion of the “gender-related identity” for the past 12 months.”

Lawyer Leslie Barnes notes of this section –

I have tried to understand where the bill’s author is coming from, but unless we require this same duration of membership in a religion, I’d say we have a deal breaker.

Logically this makes no sense – you have to assert your gender identity publicly for 12 months to be considered a “real” transgender person, but in that 12 months you are not allowed to make a discrimination claim if someone chooses to discriminate against you. That basically means that you have to run a gauntlet for 12 months for the privilege of asserting what should be your basic civil rights. During that 12 months anything can happen to you – you can lose your job, your home and your ability to exist in public free from discrimination.

No other protected class must endure this sort of danger in order to establish who they are. And no one should have to do so – “Gender Identity” covers all gender identities, including people who are not transgender. People who are not transgender can be discriminated against as well – either by people who are prejudiced against non-trans people or by people who perceive a person to be transgender when they are not.

I maintain that this section was thrown in at least partially to address an entirely different issue – making it harder to change your gender marker on identification papers. Currently, there isn’t any language in Indiana law defining what a change in gender identity is, so courts have relied on precedent when people petition for a name and gender marker change to match the gender they identify with. The court’s current precedent is to accept a physician’s statement that you have “had appropriate clinical treatment for gender transition.”

SB100 would throw out this established legal standard and impose a much harder barrier to overcome in changing your gender marker. Most states are moving toward what is currently Indiana’s precedent and away from imposing 12 month rules. For transgender people, the reason why a 12 month rule is harmful is obvious – as a trans person undergoes a medical transition, their appearance starts to change and become inconsistent with what is on their legal documents. This leaves transgender people vulnerable to harsh treatment in any circumstance where they are required to present ID – interacting with the police, for example. Trans folks need to change their ID when it is safest for them to do so – and 12 months is not often the correct time.

How SB100 harms the whole LGBT Community

Lambda Legal does a wonderful job of covering why SB100 is bad for the whole LGBT community:

Here are just a few of the troublesome provisions of this proposed legislation:

  • The religious exemptions in SB 100 are even broader than the religious refusal law passed earlier this year that marked Indiana as a state of intolerance. As the nation witnessed, enshrining the right to discriminate into the law drives away business and hurts Indiana companies when trying to attract and retain talent. Hoosiers deserve better.
  • SB 100 invites businesses and employers to discriminate against LGBT people, by allowing them to create separate dress codes and restroom rules for their LGBT employees. The bill would allow businesses to force transgender people to use a restroom or wear clothing that doesn’t match their gender. The bill is a big step backwards for all LGBT Hoosiers, but particularly transgender Hoosiers.
  • SB 100 allows some businesses and other service providers the right to refuse service to gay and lesbian couples, setting up separate, lesser protections for gay people against discrimination.
  • SB 100 expressly authorizes tax-payer-funded social service agencies, such as adoption or foster care agencies, to discriminate.
  • SB 100 changes current State civil rights laws to favor defendants in all discrimination claims—not just those involving LGBT people. The bill also creates potential punishment for victims of discrimination for filing complaints later deemed “frivolous.”
  • The bill is a “package deal” – if one part is struck down by a court because it is unconstitutional, all the other parts, including any protection it provides from discrimination based on sexual orientation or gender identity, go down with it. Many provisions of this bill are legally questionable and at least some are likely to be struck down.

And they provide a lot more in-depth coverage here on how the bill does anything but protect the rights of LGBT Hoosiers.

Our Analysis

Unlike SB35, this bill is very likely to pass through the state legislature and wind up on the Governor’s desk. If it does so as is, it will cause substantial harm to the transgender community. It would change our quality of life for the worse.

Transgender Hoosiers would need to go to court to get the two provisions I outlined above thrown out. The bathroom section would immediately be in conflict with federal law, but to establish that we would have to have lawsuits go through the courts at considerable time and expense for transgender people.

The second section establishing a definition of gender identity runs into a problem because it imposes a second tier of proof that trans people have to undergo to get their rights – it could be thrown out for that reason, but if not, it introduces into law a much harsher burden for transgender people to establish their real identity, and there is no federal standard under which we can push a lawsuit.

Because this bill is more complex, it’s much harder to establish an easy set of talking points about the bill, but we as a community need to highlight the specific passages I discussed with legislators. Simply telling our personal stories of discrimination will not be enough to get those passages thrown out. We have to talk to these two sections and ask that they be removed. We have to be able to explain why that is.

Currently, the folks formulating strategy to fix SB100 are emphasizing that trans Hoosiers tell their personal stories. That is important for people understanding who we are. But it isn’t enough to get the job done, and we as a transgender community need to go beyond what LGBT advisors are telling us. They are concerned with getting exemptions removed, but the significance of those two passages that target transgender people doesn’t resonate in their own lives because they are not transgender.

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