Articles by E. Ross
E. Ross is the founder of Bent Alaska.
Pamela’s testimony: Existing law does not protect
Pamela Kelley, attorney and UAA Justice Center Professor, prepared the following testimony on AO-64, which was first posted here. Her actual testimony varied from these notes to address a case that was applied incorrectly by an opponent. Kelley’s explanation of that case (Oncale) is also worth reading and is posted HERE.
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Thank you – Madame Chairman, members of the assembly, Mr. Mayor. My name is Pamela Kelley. I am a member of the Alaska bar, no longer practicing but now teaching undergraduates about the law. I live in Anchorage. I signed up, belatedly, to testify because I think the state of the existing law has been obscured during the public comment already taken.
Federal, state and local laws overlap in the area of equal rights in employment, public accommodations and commerce. The first inaccuracy I hear repeated in these chambers is the idea that existing law already provides the protections that the proposed ordinance would cover. It does not.
The Constitution’s equal protection clauses, at the Fifth and Fourteenth Amendments, limit actions by the government – not private acts of discrimination. Nor are federal statutes helpful.
In Title 42 of the United States Code, the Civil Rights Act of 1964 as amended reaches the area. Federal law here identifies those classes of persons against whom discrimination is illegal to include: race, color, religion, sex, national origin, age, or disability. None of those terms – including “sex” as defined – reach lesbians, gays, bisexual and trans-gendered individuals. But that only sets the minimums. The state of Alaska law may reach additional classes. Upon examination, however, it’s apparent that the Alaska Human Rights Act does not expand the classifications to cover this.
AS 18.80.220. protects against discrimination based on: race, religion, color, national origin, age, disability, sex, marital status, changes in marital status, pregnancy, or parenthood. Sexual orientation and gender identity are not identified as protected classes by state law, either.
The second category of comments that is legally inaccurate suggests the proposed ordinance confers special rights. One of two things might be going on here. Either some might be confusing the concept of non-discrimination with affirmative action. Or, some erroneously consider equal protection a kind of zero-sum game.
First: Discrimination occurs when one possessed of differences from another is rejected by that other, solely based on that difference. Only certain forms of discrimination are illegal under state, federal and local law. Same treatment as everyone else – despite differences – is the foundation of equal rights law.
Different, in fact preferential, treatment is what is at the basis of affirmative action. Affirmative action is a term used to describe programs and policies that provide preferences in benefits or contracting to a protected class to make up for historically discriminatory practices directed at that class. Obviously not the ordinance.
That leaves me with the “zero sum game” fallacy. There is no finite pool of rights to which equal protection applies. Our religious neighbors, in the free exercise of their religion, as a constitutional right, are not released from their obligations to comply with the law. The right of free exercise of religion does not prevent the law’s application when the doctrine of a freely chosen religion suggests members violate public laws. The simple example is the prohibition against illegal drug use that continues to apply to a person even if her selected religion views such use as sacramental.
Equal protection laws are aspirational, in a way. I hope my home town aspires to accept all of its people for exactly who they are and will apply the law to them equally.
Thank you.
Tiffany’s testimony: To protect each citizen
My name is Tiffany McClain, I’m a resident of downtown Anchorage, and a beneficiary of the civil rights movement that ultimately gave birth to laws to protect people of color, women, people with disabilities, and religious communities from discrimination in the public sphere and–in at least 108 cities across the country–also protect me from discrimination on the basis of sexual orientation and gender identity. I’m here to urge Assembly members to vote Yes on a version of AO 64 that does not yield in its original purpose of protecting lesbian, gay, bisexual and transgender people from discrimination in employment, housing, and public accommodations.
When I hear the arguments in opposition to AO 64, I can’t help but be reminded that in the wake of the U.S. Supreme Court’s 1954 decision in the case of Brown v. Board of Education, there was a huge outcry from white segregationists who invoked their interpretation of Christianity to rationalize their objection to school integration. They argued that the Supreme Court was forcing them to disobey the laws of God, who had–in their view–created the races as separate for a reason. School integration, they believed, would inevitably lead to intermarriage between the races, which violated God’s plan for the universe. To them, integration was a sin.
I am very grateful–because otherwise I probably wouldn’t be standing here today–that in the face of such arguments, those in charge of making and enforcing the law recognized that they had a responsibility to protect each and every citizen from discrimination and that while people and churches have a right to believe what they want, the exercise or invocation of religion is no excuse for discrimination in the public sphere–I mean public schools, housing, restaurants, and employment. And I sincerely hope that Assembly members will do the same by voting Yes to protect LGBT people from discrimination in these aspects of public life.
At the last hearing, Assemblymen Gutierrez asked a man testifying against AO 64 if this was a black-and-white issue, if one side had to lose in order for the other to win. I strongly disagreed with that man’s answer in the affirmative. Our Constitution, our legal system, our government is all about compromise, about finding the right balance between protecting individual freedoms without allowing any group of people to run roughshod over the freedoms of another group. It hasn’t always been easy, but if we want our democracy to survive it’s a balancing act that we all have to commit to. There’s nothing black-and-white about any of this and to suggest otherwise is just as extremist a view as those who, back in the 1950s, were so certain that integration would lead to the destruction of the white race. Take a look around–white people are still here. And I believe that if this law passes tomorrow or next month, or next year that 60 years from now there will still be churches and schools that choose to preach against homosexuality and they will be allowed to exist–and should be allowed to exist–because that’s what our Constitution promises. But that promise can in no way be interpreted to mean that individuals should be denied equal access to employment, housing, education, and public accommodations just because of their sexual orientation and gender identity. That is all we’re asking you and the mayor to recognize.
Thank you.
Kathy’s testimony: There is indeed prejudice
In gratitude for the many speakers who testified in favor of the Anchorage equal rights ordinance, Bent Alaska is posting a Testimony series. May the wise words of our friends and neighbors heal us from the weeks of hate-filled hearings and give us strength to face the next stage of this political process.
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Kathy’s Testimony
I’m here to ask the Assembly to do 3 things:
First, end the hearing on AO#64. We have seen hundreds of people come forward already. You have listened to Bible readings, hymns, personal confessions, sermons, grandstanding, and copious examples of wild and “unique” logic. I have heard you accused of graft, being moral dictators, and denying parental rights. You’ve been threatened with everything from eternal damnation to losing your assembly seats. On what other matter of municipal business would you countenance all this?
I have watched you remain remarkably polite, attentive, and respectful in the face of this onslaught, not to mention striving to keep a straight face. You know how much work and aggravation this public hearing has brought to you. Think of the fortitude required of those of us who are the objects of so much stereotyping, vilification, and venom. I’ve heard these hearings described as ‘municipally sanctioned gay-bashing.’ Enough. You have done your duty; little new information is coming to light; we have suffered more than enough. Move to end these hearings.
Second, the parade of testifiers surely has established without a doubt that there is indeed prejudice against homosexuals in Anchorage. Some of you question whether that prejudice leads to any actual acts of discrimination. I’d like to remind you of at least two testimonies the first night of the hearings that brought forward very clear, very specific, verifiable instances of blatant discrimination. Some may find these instances easy to discount as anecdotal, or cite lack of evidence of discrimination in public records. I remind you that if these individuals approached our very own municipal Equal Rights office, they would be turned away because our ordinances do not protect them. If you do nothing else as a result of these hearings, at the very least I urge you to direct your Equal Rights Commission to begin to document claims and collect data on discrimination against LGBT individuals.
Third, it is very risky for members of the LGBT community to come forward to speak, not only at assembly meetings, but even to acknowledge their sexual orientation in daily circumstances. “So what,” some people say, “my own heterosexual orientation is not a topic of discussion; homosexuals just want to flaunt their sexuality.” But in fact heterosexuals speak freely of their families, friends, and activities. They can share pictures, tease a spouse in public, complain about a mate, bring spouses to company events, hold hands in public, etc., clearly showing evidence of their heterosexuality in the normal course of the day. That they can do so without worrying about an employer or landlord taking action against them for being heterosexual is an unconscious assumption on their part, a part of their normal right to freedom of speech, expression, and association. LGBT people cannot take these rights for granted. Many find their safety, job security, and very survival depends on keeping their sexual orientation hidden, themselves hidden and silenced. I would challenge any heterosexual person present to live with such restriction and not find it a violation of inalienable civil rights. I urge you, Assembly members, to support this ordinance to bring EQUIVALENT civil rights to all citizens of Anchorage.
Gold, Fur & Feathers for Coronation 2009
Pride Conference seeks committee members
This Week in LGBT Alaska 7/24/09
McCarthy
Juneau
SEAGLA Social Fridays (6-8 p.m.) for GLBT people and our friends over 21, at The Imperial Bar, downtown.
Fairbanks
March with PFLAG and carry the Key West Pride Flag in the Golden Days Parade, 7/25. Meet in the Carlson Center parking lot by 9:30 a.m. in space 36. Post-parade Picnic at Nussbaumer Park from 2-6 p.m.
Women’s Motorcycle Ride Saturday, 7/25 meets in the Regal/Goldstream Theater parking lot at 4 p.m.
Mat-Su Valley
Mat-Su LGBT Community Center in Palmer is open M-F 5-8 p.m. (except 6-8 on Wed.) The social group meets Wednesdays, 5-6 p.m. at Vagabond Blues.
Anchorage
Lesbian Film Group & Potluck 7/24, 6 p.m. See The Anchorage LGBT Meetup Group for details.
The Diva’s Variety Show Fridays, 9 p.m. at Mad Myrna’s.
Adult Comedy Hypnosis Show with Jay Her, Saturday 7/25, 9 p.m. $10 at Mad Myrna’s. Tickets available online here.
Mad Mike @ Mad Myrna’s spinning Electro, House & Trance, Saturdays 11 p.m.-2:30 p.m. with Special Guest DJ’s.
Sunday worship with MCC Anchorage 7/26, 2 p.m.
The Last Frontier Men’s Club Annual Meeting and Election 7/26, 6 p.m. Mad Myrna’s.
Transgender Support Group, Sundays 6:30-8:30 p.m. at the GLCCA.
Self-Healing & Compassionate Communication Workshop for LGBT Community & Allies 7/27, 6-8:30 p.m. 1057 W. Fireweed, Suite 102 (Four A’s Building), United Way Conference Room. Please pre-register if possible.
Anchorage Frontrunners, Tuesdays, 6 p.m.
Irina’s tour, Frank’s podcast, LGBT Bowling, ATE thanks Senators, Newsletter seeks Helper
Public Testimony Closed on Anchorage Equal Rights Ordinance
Ordinance Hearing #6 on Tuesday, July 21
I and they know that this ordinance won’t make hatred and discrimination go away, but it will give them somewhere to turn when they are harassed because of who they are. I will stand and fight with them, and with you, to make this community the place that it should be.He [Jerry Prevo] has built his career out of hatred, and I am not willing to let him win this time. He is a pitiable man and a bully, but he does not dictate the behavior of the Anchorage community.
I’ve heard and learned a staggering amount during these hearings. Some words have left me in absolute awe of the intelligence, bravery, and perseverance on display. Other words are harder to drink away.For now, the fate of Ordinance 64 rests with the Assembly. We need to keep showing up, and keep reminding the Assembly that we won’t go away.Hate, in no way, results in the betterment of a society. And we are foolish if we pretend that Anchorage is somehow immune.
This Week in LGBT Alaska 7/17/09
Juneau
SEAGLA Social Fridays (6-8 p.m.) for GLBT people and our friends over 21, at The Imperial Bar, downtown.
Fairbanks
Women’s Motorcycle Ride Saturday, 7/18 meets in the Regal/Goldstream Theater parking lot at 4 p.m.
Mat-Su Valley
Mat-Su LGBT Community Center in Palmer is open M-F 5-8 p.m. (except 6-8 on Wed.) The social group meets Wednesdays, 5-6 p.m. at Vagabond Blues.
Anchorage
Midnight Soapscum: Goes to Hell! Final Episode, 7/17-7/18, 10:30 p.m. Out North Tickets $15 online or at the door. Saturday’s show follows The Big Fat Gay Wedding (see below.)
Integrity (Episcopal GLBT group) monthly potluck, fellowship and worship 7/17, 6:30 p.m. at St. Mary’s Episcopal Church, Lake Otis & Tudor.
Gay-Karting with Adam & Steve 7/18, 2 p.m. RSVP required.
Barony of Spenard 7/18, 7:16 p.m. at Mad Myrna’s $5. Best in Theme Contest & Auction.
The Big Fat Gay Wedding 7/18, 7 p.m. Out North. Unions blessed & vows renewed.
Mad Mike @ Mad Myrna’s 7/18, (Saturdays) 10 p.m.-2:30 p.m. with Special Guest DJ’s.
LGBT & Supporters Community Potluck at Goose Lake Picnic Shelter 7/19, 1 p.m.
Sunday worship with MCC Anchorage 7/19, 2 p.m.
Transgender Support Group, Sundays 6:30-8:30 p.m. at the GLCCA.
Anchorage Frontrunners, Tuesdays, 6 p.m.
Anchorage Equal Rights Ordinance Hearing 7/21, 5-11 p.m. Loussac Library. Equality Works.
