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07-26-10 Common Council Meeting Minutes
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07-26-10 Common Council Meeting Minutes
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REGULAR MEETING JULY 26, 2010 <br /> <br /> <br /> <br />1,800 attorneys and like-minded organizations defending the right of people to freely live <br />out their faith. Their organization exists to educate the public and the government about <br />important constitutional rights, particularly the freedom of religious expression and <br />exercise. They frequently defend these important freedoms in the courts through their <br />offices across the country. The sincerity of religious beliefs about male and female is <br />why crating special protection for gender identity would have an unavoidable negative <br />impact on religious liberty and rights of conscience in the workplace. The ordinance <br />would infringe on religious liberty and rights of conscience of both religious employers <br />and ordinary business owners. This would be true even if the ordinance included <br />meaningful religious exemptions. The useless religious exemption of Section 2-127.1(e) <br />is confusing to say the least. It first exempts employment decisions of religious <br />organizations. Nevertheless, the next phrase seems to limit the exemption to positions <br />where hiring a person who engages in homosexual behavior or presents with a gender <br />other than his or her biological gender would “affect the definition, advancement of the <br />mission(s), practices(s) or belief(s)” of the organization. It then has some convoluted <br />language about someone “charged with the implementation of such decision or <br />decisions.” The grammar is so bad that it is impossible to tell to whom that applies or <br />what it means. There also appears to be an exemption for right of association of private <br />organizations, as in the Boy Scouts of America case. But the extent of that exemption is <br />far from clear. For example, the language is sufficiently vague, that it is uncertain <br />whether the exemption would apply to the Boy Scouts’ hiring practices. The exemption <br />language is either poorly written, or written in a way that is not intended to convey much <br />of an exemption. And regardless, there is no exemption for the rights of conscience of <br />individual persons of faith. How an employer to know what an employee’s actual gender <br />is related self-identity or self-image is without asking. Could an employer ask without <br />eventually being accused of discrimination? How is one to know how an employer <br />perceives and employee’s gender-related self identity or self-image? There is simply no <br />objective criteria an employer can utilize to ascertain an employee’s gender identity. <br />Gender expression is likewise a problematic criterion for employers. How could an <br />employer ever adopt and enforce a dress code if gender expression is a protected <br />category? How is an employer to know whether a person’s attire, posture, vocal <br />inflection, and so on really reflect that individual’s “fundamental sense of themselves as <br />masculine or feminine, and male or female? The proposed gender identity provision <br />could readily result in providing a legal cause of action for employees who are property <br />discharged or passed over for a promotion. Gender Identity laws have not existed long <br />enough to allow a thorough analysis of how they will affect employers. But there have <br />already been lawsuits by transsexuals against employers to demand the right to use <br />restrooms reserved for members of the opposite biological sex. In fact, in an early case <br />the Minnesota Court of Appeals ruled that an employer violated an employee’s rights by <br />designating restrooms and restroom use on the basis of biological sex. The ambiguity of <br />gender identity and the meaningless religious exemption exacerbates the danger to <br />religious liberty posed by Common Council Bill No. 30-10. The Common Council <br />should not deceive themselves into thinking this bill would further the cause of liberty <br />and justice. <br /> <br />Richard B. Urda, Jr., 3104 Springbrook Drive, South Bend, Indiana, stated that he has <br />been practicing tax and business law in South Bend since 1975. He stated that he is not a <br />philosopher or a theologian, but just a simple country lawyer. His reason for opposing <br />this proposed amendment is practical. He stated that the co-sponsors of this bill think in <br />good faith that it will attract new business to South Bend, and create new jobs. He <br />believes it will have just the opposite effect. Most of his clients are small businesses and <br />small business owners who fear that someone will file a claim against them and entangle <br />them in costly and timely legal proceedings. One of the biggest factors in a small <br />business looking to locate or expand their business is their legal risks in that community. <br />If passed, this amendment will make the current small businesses have a new risk of <br />being sued for sexual orientation discrimination. If passed new employers will have to <br />evaluate the risk of being sued for this kind of discrimination and the risk of locating in <br />South Bend. That risk for old and new small businesses does not exist in Mishawaka, <br />Elkhart, St. Joseph County, LaPorte or other towns that are competing for these same <br />businesses and these same jobs. So why should a small business come here or stay here <br />and have to deal with this kind of legal risk. Mr. Urda stated that based upon his legal <br /> 10 <br /> <br />
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