eQualityGiving’s Omnibus Equality Bill Proposal

eQualityGiving is proposing a bill to correct the unequal treatment of LGBT people in all areas of federal law – employment, housing and public accommodations discrimination, the American with Disabilities Act, DOMA, DADT, etc. Read about (and download) it here. Whether or not a comprehensive bill like this is ever introduced or enacted, I think it serves a useful purpose in uniting the debate on the many ways in which we are treated unequally and helping to ensure that the changes we seek are consistent.

What do you think?

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FYI, here is eQualityGiving’s email announcing its proposal:

INTRODUCING THE EQUALITY & RELIGIOUS FREEDOM ACT

Dear Abigail,

What if we asked for legal equality all at once in one comprehensive omnibus bill?

THE BLUEPRINT FOR LGBT EQUALITY

What would a bill for total legal equality look like? We asked attorney Karen Doering, a very experienced and savvy civil rights attorney, to prepare such a bill. It was presented and discussed on our listserv, which includes many of the major donors to the movement and the executive directors of all the major LGBTQ organizations.

We believe now is the time to introduce an omnibus bill.

We have prepared a section of our website with all the information about the proposed bill:
www.eQualityGiving.org/Blueprint-for-LGBT-Equality

There you can read the actual text of the bill and read the answers to the frequently asked questions. There is also a section reviewing the status of the incremental bills currently proposed. You can also post your comments directly on the site.

WHAT THE OMNIBUS BILL COVERS

1. Employment
2. Housing
3. Public accommodation
4. Public facilities
5. Credit
6. Federally funded programs and activities
7. Education
8. Disability
9. Civil marriage
10. Hate crimes
11. Armed forces
12. Immigration

INCREMENTALISM vs. OMNIBUS BILL

Some people think that an omnibus bill is too unrealistic to pursue because Congress functions in a very complex way. But the country voted for a new leader who promised major changes to the way our government functions.

We have tried incrementalism at the federal level for LGBT equality for 35 years without any results. Now is the best time to capitalize on the energy of new leadership and propose what we think change looks like.

As the Rev. Dr. Martin Luther King said:

“A right delayed is a right denied.”

Asking for an omnibus equality bill does not mean that we need to pursue it at the expense of incremental bills. Both approaches can be used simultaneously, and we encourage this strategy.

An Omnibus bill has two major benefits:

> It points out in clear legal terms all the areas in which we are not treated equally under the law. If we ask for less, we will certainly get less.

> An Omnibus bill provides a standard to which incremental victories can be compared. We may discover, for example, that even the trans-inclusive ENDA introduced in March 2007 still did not provide the same level of protections in employment that other groups receive.

SAY WHAT YOU THINK

If you believe that, in addition to incremental bills, we should also push for an Omnibus Equality Bill, tell your member of Congress, talk to your friends, and write about it on the site. All the info about the bill is here:

www.eQualityGiving.org/Blueprint-for-LGBT-Equality

For many months we have been preparing this Omnibus Equality Bill. Join us to push for it, so that we can achieve LGBT legal equality faster.

Best regards,

Juan Ahonen-Jover, Ph.D.
Ken Ahonen-Jover, M.D.
Founders, eQualityGiving

P.S. Please forward this alert to others who could be interested.

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UPDATE – 3/24/09

Recently, there has been some discussion in the blogosphere about the impact of what some believe to be a narrower definition of “gender identity” in the federal Hate Crimes Bill (HR1592) from 2007, when compared to the definition of that term in the gender-inclusive ENDA (HR2015) from that same year. (The Hate Crimes Bill defined “gender identity” as “actual or perceived gender-related characteristics,” while the inclusive version of ENDA defines it to mean “the gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual’s designated sex at birth. To learn about this discussion, read Kathy Padilla’s recent posts on The Bilerico Project here and here.) In a comment I left on eQualityGiving’s website, I pointed out this difference and the risk of unnecessary litigation over whether the definitions are intended to have different meanings. In response, eQualityGiving has amended their Omnibus Bill to include the same definition in all its provisions, including hate crimes. The revised version of the bill, dated March 21, 2009, is available for download on eQualityGiving’s website.

In my original post, I failed to note one huge advantage eQualityGiving’s Omnibus Bill has over even the inclusive version of ENDA. Rather than enacting a separate statute with a broader exemption for religious organizations and other provisions that differ from existing civil rights law, eQualityGiving’s bill would simply amend Title VII of the Civil Rights Act of 1964 (the federal law banning sex, race and other discrimination in employment) by adding “sexual orientation” and “gender identity” to its terms. As Karen Doering, the drafter of the Omnibus Bill, explains on the FAQ page for the bill, this approach has substantial advantages over ENDA. Having worked as an investigator of discrimination claims under Title VII and being familiar with its terms and, especially, how it has been interpreted by the courts, I see this as a major improvement over current proposals.

Will the proposed amendment to Arizona’s Constitution to ban same-sex marriage change the treatment of existing marriages in which one partner transitions?

Recently, on one of the Arizona trans-related Yahoo groups that I belong to, one member stated her belief that the proposed constitutional amendment to ban same-sex marriages in Arizona, known as Prop 102, would change the law so that “[e]xisting marriages involving a transsexual could easily be nullified.” (The proposed amendment states, “Only a union of one man and one woman shall be valid or recognized as a marriage in this state.”) Here is my response:

I disagree. Prop 102 will have no more, and no less, effect on marriages in which one partner transitions after marriage than the existing statute.

That statute (ARS 25-101(C)) states, “Marriage between persons of the same sex is void and prohibited.” There is no material difference, from a legal standpoint, between a statute, or constitutional amendment, one of which says same-sex marriages are void and the other of which says that only marriages between a man and a woman are valid. Both have the same potential to invalidate existing marriages in which one partner legally changes her or his sex, if the courts choose to recognize that change for purposes of marriage, thus rendering the marriage an illegal same-sex marriage. (Note that, this is not the approach the courts in Kansas and Texas took. Those courts refused to recognize a legal change of sex for purposes of marriage. Under those rulings, a marriage in which one partner legally changes sex after marriage would continue to be valid. As noted below, however, I know of no cases in which that holding has been extended to pre-existing marriages, rather than marriages in which the partner transitions prior to marriage as were involved in those cases.)

In either case, any attempt to declare an existing marriage that was legal at the time it was first entered into, void because one partner transitions would face significant problems under the due process and equal protection clauses of the federal constitution, which always trump state law. There is a long line of cases saying that, as long as a marriage was legal when and where it was entered into, then it remains valid until and unless the partners legally divorce. That’s why people did, and still do, go to Las Vegas to get married instantly and can go back to their home states and have their marriages treated as valid, even though their home state would have imposed additional requirements, such as a waiting period or a blood test. It’s also why first cousins from Arizona can travel to a state where such marriages are legal, get married, and return to Arizona and have their marriage recognized as valid, even though Arizona law says that marriages between first cousins are “void and prohibited” (ARS 25-101(A)), which is the same language used in the ban on same-sex marriages.

The validity of existing marriages in which one partner transitions after marriage hasn’t been resolved anywhere in the U.S., at least, as far as I know, but there is no reason to think that such marriages are any more, or any less, at risk under Prop 102 than they are under existing Arizona law. Nonetheless, I think that anyone in such a marriage needs to be aware of the risk that their marriage might be challenged at some point, and take precautions, e.g., mutual wills and medical directives, to ensure that, if that happens, they will not lose all of the rights and benefits they expected to receive from being married.

Cross-posted from my personal blog.