The reason that I've decided to weigh in is simple. Crap such as this. While Mimi Swartz is certainly allowed to write whatever drivel she wants on the issue but, she's utterly wrong and, in true TLSPM style, suffering from a mad case of hyperbole. The entire HER Ordinance debate has been drowned in a sea of hyperbole and downright idiocy that has both sides partaking in more projection about the motives of the other side than actual debate over the ordinance.
In one sense, this is to be expected. Debate overall in this country has devolved toward fake "gotchas" and snark in 140 characters or less than actual constructive dialogue. If you want to point a finger of blame you could look all over the place, but a good place to start might be members of the Chattering Class including Bill O'Reilly, Rachel Maddow and a host of others.
Let's just calm down for a minute and look at the actual text of HER Ordinance and see if there's anything actually written in there that would cause concern. Now, granted, if you're pro HER Ordinance your default answer is "of course there's not" and if you're anti-HER Ordinance then you will shout "there sure is!" I get that. But, and here's the kicker, have you read it?
Because I'm willing to bet most people on both sides have not.
Before I get started let me first say this: I am not a voter in the City of Houston, I live in unincorporated Harris County. As such I am going to have no say on this matter. I do however work, and manage people for a company inside Houston's City Limits. On my staff of approximately 25 people I have a wide range of races, sexes, political views. I might even have a variety of sexual orientations on my staff. The point is I don't know, and I really don't care. What I look for are talented accountants, regardless of race, creed, religious preference, sex, sexual orientation etc. I imagine that most companies, especially large ones, are like that, but I'm not naïve enough to believe that discrimination doesn't exist solely because I keep it away from my group.
And that's the first point to concede here: Discrimination, even in modern day society, exists. Unfortunately, we live in a world, nation and state where "diving while black" is a thing, where the 'little lady' mentality still holds sway, where the 'good ol' boys club' is accepted and where being a member of the GLBT community is considered a pox on your person and an abomination against all that is good and Holy. I get that. I don't like it, but I get it that these things exist.
Because, if you don't believe any of that then you might as well stop reading. I understand, and accept, that there are bad things that go on in the world that need to be remedied. I also understand that the United States has Federal non-discrimination laws and Texas has State non-discrimination laws that hold sway over the City of Houston. It is important to note that none of these laws hold sexual orientation or gender identity as protected classes.
This then, is the root of the problem. Quoting from the "definitions" portion of the Ordinance:
Gender Identity means an individual’s innate identification, appearance, expression or behavior as either male or female, although the same may not correspond to the individual’s body or gender as assigned at birth.
This is the controlling language that is driving most, if not all, of the controversy. It appears in this Ordinance and is rife with problems.
1. The phrase "Innate identification" has not been full litigated as to provide a legal threshold for application.
In legalese, words have very specific meanings and can lead to very, very specific and harmful legal remedies if not fully vetted. It is very hard to determine, on the part of a business owner, if someone is being truthful and honest in their claims of identification which could lead to needless litigation. This is clearly a gift to the GLBT community by Parker, as it codifies a legal term that, as of yet, has little to no case law that provides a definition.
The Houston Baptist blog for the School of Humanities as a good write-up on this here. Where they also mention the following:
2. Gender assignment language is an odd thing to include in an ordinance of this sort.
The phrase "gender assignment" assumes a position that the GLBT community rejects out of hand, that our sex is 'assigned' to us at birth, like a 'kick-me' sign plastered on our backs. I'm unsure what exactly the authors were striving for here but it does seem to be another try at over-broadening the rule to allow for a freer interpretation of gender identity than is offered in any city's existing ERO.
It's this focus on gender self-identification, and the troubling legal fuzziness of the terms used, that has led most of the opposition to focus on the hysterical claim that a "man could enter a ladies bathroom and expose him(her)self to young girls." Supporters point out, rightly, that sexual assault and exposing yourself to a minor is still a crime in Houston, Texas and America (and most of the rest of the world for that matter, with a few exceptions) but fail to acknowledge that the coarse wording in the ordinance could potentially make it more difficult for a place of business to prevent a person from entering the restroom to commit a crime.
The biggest defense to this is that 'the right just doesn't understand transgendered men' which is probably true, but the counterargument to that is that the left is willfully ignoring the sometimes single-mindedness and determination of those who are intent on breaking the law. It should also be pointed out that many of the people the anti-HER Ordinance groups are concerned about here are not actual transgendered people. That seems like a rather thin distinction, but I do believe it to be an important one.
Is there a better way to word this? Most certainly. And while I don't claim to have all of the answers it would behoove both supporters, and opponents, to try and sit down in a room and try and work out a compromise. This is true even IF HER Ordinance passes.
The second area where I have concerns regarding HER Ordinance is procedural in nature. HER Ordinance states that there are several steps to remedy of a complaint:
1. The Inspector General begins an investigation.
2. The Inspector General requests evidence.
3. If evidence is not received, the Inspector General, in conjunction with the City Attorney, can request a subpoena.
It is at this point, without the actual collection of any evidence, that a business could find itself in municipal court with very few prescribed remedies for relief of cost. The article does say that it would be a criminal act for a complainant to file a false claim, but does not mention that they may be liable for the costs incurred by the complained.
This is, by any measure, a very fast track to court which could tie-up the system and lead to a lot of businesses being brought in for simple misunderstandings. In fact both the Inspector General and Municipal Courts are given broad discretion in the matter of determining intent. It is unclear to what level "intentionally discriminates" will be elevated. If you're familiar with any civil action at all, the defined thresholds for a violation to incur are vital to the success of any rule's success.
It also feels like an employer, who had two choose between (as an example) a gay job applicant and a black job applicant could find themselves a victim of a discrimination claim no matter which one they picked. That's my biggest problem with this law, is that it seems to assume discrimination where none exists. HER Ordinance assumes, by text, that if someone says discrimination is happening then it is. As we know, from real-world experience, that is not always (or even usually) the case.
It's also very clear that Parker and Co, when crafting HER Ordinance, didn't bother to talk to any stakeholders outside of the GLBT community. Whether HER Ordinance passes or fails it would behoove the next mayor to bring in all the affected groups and work to tweak this bad piece of legislation to fix these errors.
To be honest, I don't take issue with anything else written into HER Ordinance. As I stated earlier, I concede that discrimination happens and I believe that it is in the best interest of the community to try and tamp it out whenever possible. That said, speech is still free in America, just, so within those boundaries I think that sometimes it's not wise to try and suppress discriminatory speech, but to point it out and mock it in the public square. This also lets us know exactly where the bigots are hiding. On ALL sides of the political spectrum.
None of what I wrote above should mean to suggest that I'm advocating a vote for, or against, HER Ordinance. The citizens of Houston will ultimately go to the polls and cast ballots which will do this job quite well. My only point here is to try and remove the hyperbole, look at the text of the ordinance itself, and identify potential pratfalls.
Finally, one of the biggest arguments used by supporters of HER Ordinance is that "other cities already have these and Houston doesn't." This is both true, and untrue. A look at the GLBT language in some cities reveals missing details that made them not quite as controversial as HER Ordinance:
1. Dallas: " (a) Employers. It is unlawful for an employer, because of sexual orientation:
(1) to fail or refuse to hire, or to discharge, any person;
(2) to discriminate against any person with respect to compensation, terms, conditions, or privileges of employment; or
(3) to limit, segregate, or classify employees or applicants for employment in any way that would deprive or tend to deprive a person of employment or employment opportunities, or that would otherwise adversely affect a person's status as an employee.
This one is fairly straight-forward, as Dallas has excluded gender identity altogether from it's list.
2. San Antonio: It shall be the general policy of the city to prohibit discrimination on the basis of race, color, religion, national origin, sex, sexual orientation, gender identity, veteran status, age or disability, as set forth in the divisions following, unless exempted by state or federal law or as otherwise indicated.
Definitions: Gender identity means a gender-related identity, appearance, expression or behavior of an individual, regardless of the individual's assigned sex at birth.
San Antonio's Ordinance is almost directly in-line with Houston's and, to be fair, is even more chunkily worded than HER Ordinance. That ordinance is still creating divisions within the San Antonio Community. but does not appear to have faced any serious legal challenges. However, one thing the San Antonio Ordinance has for it is a.)It's not 36 pages long and b.) it does a better job laying out how claims are dealt with, where HER Ordinance leaves open the door to a LOT of otherwise innocent people being pulled into a meat grinder of a system because of some fairly fuzzy definitions of evidence.
There are other cities with ERO's in place but, on a post that's already overlong, I'm going to spare you the details and let you look them up yourself. Again, I have no preference when, or how, you vote on these matters, it is not the job of this blog to endorse. I view my job as one of presenting the facts, with an admitted conservative spin. In that respect you should understand that I am 1.) A Republican 2.) A Christian and 3.) A Caucasian Heterosexual Male, happily married for over 17 years. In other words, the very type of person that Parker and Co consider to be among the WORST PEOPLE IN THE WORLD. Does this skew my POV? Yup, but at least I throw it out there for your to see. I believe that we should all have all of the facts when debating, or deciding on any issue.
If you're a citizen of the City of Houston, and are planning to vote, then you are going to have a say on this issue. Regardless of whether HER Ordinance passes or fails (and I think it will pass FWIW) the next administration should consider looking at some of the weaker parts of the ordinance and shoring them up. As we've seen with the Affordable Care Act, any complex piece of legislation, no matter how well intended, is going to be littered with unintended consequences. The way to address those consequences can take one of two forms: Tweak the bill and fix the problems or kill the bill altogether and start from scratch. For HER Ordinance I think the best solution is a tweaking, but voters might have to kill the thing in order to get there.
And for goodness' sake STOP paying attention to the clown show. If Mimi Swartz or any other member of the Houston/Texas Lock-Step Political Media tells you they're embarrassed of Houston tell them "Good, we were trying for complete shame and horror but will settle for embarrassed just as well." Maybe then she'll go back to Austin and we won't have to deal with inward looking clap-trap like that any longer.
