07-26-10 Common Council Meeting Minutes

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REGULAR MEETING JULY 26, 2010 1,800 attorneys and like-minded organizations defending the right of people to freely live out their faith. Their organization exists to educate the public and the government about important constitutional rights, particularly the freedom of religious expression and exercise. They frequently defend these important freedoms in the courts through their offices across the country. The sincerity of religious beliefs about male and female is why crating special protection for gender identity would have an unavoidable negative impact on religious liberty and rights of conscience in the workplace. The ordinance would infringe on religious liberty and rights of conscience of both religious employers and ordinary business owners. This would be true even if the ordinance included meaningful religious exemptions. The useless religious exemption of Section 2-127.1(e) is confusing to say the least. It first exempts employment decisions of religious organizations. Nevertheless, the next phrase seems to limit the exemption to positions where hiring a person who engages in homosexual behavior or presents with a gender other than his or her biological gender would “affect the definition, advancement of the mission(s), practices(s) or belief(s)” of the organization. It then has some convoluted language about someone “charged with the implementation of such decision or decisions.” The grammar is so bad that it is impossible to tell to whom that applies or what it means. There also appears to be an exemption for right of association of private organizations, as in the Boy Scouts of America case. But the extent of that exemption is far from clear. For example, the language is sufficiently vague, that it is uncertain whether the exemption would apply to the Boy Scouts’ hiring practices. The exemption language is either poorly written, or written in a way that is not intended to convey much of an exemption. And regardless, there is no exemption for the rights of conscience of individual persons of faith. How an employer to know what an employee’s actual gender is related self-identity or self-image is without asking. Could an employer ask without eventually being accused of discrimination? How is one to know how an employer perceives and employee’s gender-related self identity or self-image? There is simply no objective criteria an employer can utilize to ascertain an employee’s gender identity. Gender expression is likewise a problematic criterion for employers. How could an employer ever adopt and enforce a dress code if gender expression is a protected category? How is an employer to know whether a person’s attire, posture, vocal inflection, and so on really reflect that individual’s “fundamental sense of themselves as masculine or feminine, and male or female? The proposed gender identity provision could readily result in providing a legal cause of action for employees who are property discharged or passed over for a promotion. Gender Identity laws have not existed long enough to allow a thorough analysis of how they will affect employers. But there have already been lawsuits by transsexuals against employers to demand the right to use restrooms reserved for members of the opposite biological sex. In fact, in an early case the Minnesota Court of Appeals ruled that an employer violated an employee’s rights by designating restrooms and restroom use on the basis of biological sex. The ambiguity of gender identity and the meaningless religious exemption exacerbates the danger to religious liberty posed by Common Council Bill No. 30-10. The Common Council should not deceive themselves into thinking this bill would further the cause of liberty and justice. Richard B. Urda, Jr., 3104 Springbrook Drive, South Bend, Indiana, stated that he has been practicing tax and business law in South Bend since 1975. He stated that he is not a philosopher or a theologian, but just a simple country lawyer. His reason for opposing this proposed amendment is practical. He stated that the co-sponsors of this bill think in good faith that it will attract new business to South Bend, and create new jobs. He believes it will have just the opposite effect. Most of his clients are small businesses and small business owners who fear that someone will file a claim against them and entangle them in costly and timely legal proceedings. One of the biggest factors in a small business looking to locate or expand their business is their legal risks in that community. If passed, this amendment will make the current small businesses have a new risk of being sued for sexual orientation discrimination. If passed new employers will have to evaluate the risk of being sued for this kind of discrimination and the risk of locating in South Bend. That risk for old and new small businesses does not exist in Mishawaka, Elkhart, St. Joseph County, LaPorte or other towns that are competing for these same businesses and these same jobs. So why should a small business come here or stay here and have to deal with this kind of legal risk. Mr. Urda stated that based upon his legal 10