LGBTQ anti-discrimination bill tries once again to become law
Ohio Statehouse

“Please don’t be my bullies, too.”

These words echoed loud against the salmon-pink walls of room 114 of the Ohio Statehouse. They concluded the testimony of 11-year-old Sean Miller, a transgender girl offering her story of fighting bullying and discrimination, at a proponent hearing for the Ohio Fairness Act (or HB 369). The state representatives on the House Civil Justice Committee watched sympathetically, but under the surface a familiar fight was brewing.

The Ohio Fairness Act would amend the state code to expand its protected groups and outlaw discrimination on the basis of sexual orientation, gender identity, or gender expression. While 28 localities in Ohio have some form of LGBTQ protection, those only cover about a fourth of people in the state. In most places in Ohio, it is still legal to fire an employee, deny a renter a lease, or refuse to give a homebuyer a loan on the basis of their sexuality or gender identity.

While the content of the bill is fairly uncontroversial and lags behind LGBTQ equality nationally (24 US states and territories have LGBTQ protection laws and marriage equality was won nationally in 2015), it has been a battleground for years. Alana Jochum, Executive Director of Equality Ohio, noted that this was the fourth version of this bill to enter committee, and others speculated that LGBTQ protection laws had been introduced every year for the last ten years, with no success at passing them.

“[Our community] is sick of seeing it go nowhere,” Jochum said.

A Familiar Opposition

And yet, on paper, the Ohio Fairness Act should be a no-brainer. It is doing nothing that 24 other US states and territories have not already done, and the US Supreme Court has said that these laws are “unremarkable.” The OFA has bipartisan support, and is so uncontroversial that 84 percent of Ohioans falsely believe that the state already has legislation protecting LGBTQ individuals from discrimination. So what’s stopping it?

When asked about the opposition they expected to hear in the course of the bill fighting to become law, James Knapp, chair of TransOhio, immediately responded, “the religious right. Definitely.” Indeed, at the very beginning of the testimony hearing, a representative asked Knapp if HB 369 could inhibit religious freedom. Knapp, who has a background in religious studies, answered unequivocally that it did not.

The primary opposition to the bill in committee, however, was not on the basis of religion, but on the basis of a slippery-slope argument, centered around the legal phenomenon of “disparate impact” cases.

Early in the hearing, Rep. Seitz (R) asked witness Chad Eggspuehler, a lawyer for Tucker Ellis and LGBTQ legal advocate, if anything in the bill outlawed the use of “disparate impact” claims. When Eggspuehler didn’t give a clear answer, Seitz became more irate, asking if Eggspuehler knew how much money was “wasted” each year by employers trying to disprove disparate impact claims. He then accused the bill’s proponents of “sliding over the practical difficulties” of implementing it.

By the time the next witnesses took the floor for testimony, Seitz had already left the room.

“Disparate impact” is essentially the analysis of the consequences of discrimination, rather than if discrimination was intentional. Justice Kennedy, in the 2014 case Texas DHCA v. Inclusive Communities, described it like this: “It permits plaintiffs to counteract unconscious prejudices and disguised animus that escape easy classification as disparate treatment. In this way disparate-impact liability may prevent [discrimination] that might otherwise result from covert and illicit stereotyping.”

Basically, while anti-discrimination laws can easily deal with a restaurant that openly refuses to serve certain races or sexualities, it’s much more difficult to deal with employers throwing out resumes on the basis of race or sexuality. It happens behind closed doors and generally with no witnesses. Disparate impact analysis allows plaintiffs to point out the effect of policy, like hiring practices, without having to prove if the employer was actively trying to discriminate.

This challenge was clearly something the proponent side had been expecting. Rep Hillyer (R), a co-sponsor of the bill, brought up disparate impact three more times after Seitz left the room, giving witnesses the opportunity to fight back.

A representative from the Ohio Civil Rights Commission said, “In the 23 years I’ve done this work, I’ve only ever seen a handful of disparate impact cases.” In a later testimony, the Ohio State Bar Association added, “We don’t believe HB 369 will open the floodgates [on disparate impact cases].”

Is an End in Sight?

Could this be the year that LGBTQ discrimination is outlawed in the state of Ohio, after nearly a decade of proposals being shot down? While Jochum declined to estimate how likely she thinks the bill is to pass, she said, “I think it has the best chance it has ever had.”

Lena Tenney, media representative from TransOhio, also didn’t know what chance the bill has this time around. “I’m really not sure,” Tenney said. “And I think the lack of certainty is its own commentary on the whole situation.”

Jochum credits the influence of the Ohio business community, who has clearly put their thumb on the scale in favor of LGBTQ protections. The Ohio Realtors Association, Columbus Chamber of Commerce, and Ohio Business Competes Coalition all spoke at the hearing in favor of the bill.

Tenney commented that the influence of business in the case has been undeniable, though it shouldn’t be the main argument. “It’s a powerful rhetoric. When saying ‘this is the right thing to do’ isn’t enough, being able to say ‘businesses want this’ is really helpful at undermining pushback.” They added, “But it’s not the same as us having a moral obligation to each other. Because trans folks, queer folks – we’re more than our ability to produce in society.”

When asked about the legal challenges to the bill, Tenney explained that it reminded them of the Civil Rights movement. “The Civil Rights Act was never intended to be the end-all, be-all – it was a beginning. It was not the aspiration. It was early steps that were hard-fought by civil rights activists,” Tenney said. “But it wasn’t MLK’s dream to pass one piece of legislation and then call it good. The fact that we’re still arguing about what a bill from 50 years ago means instead of taking more steps is troubling.”

Many of the witnesses and spectators in that hearing room had been coming to fight for this bill year after year. People recognized each other, said hello, and speculated on this year’s outcome. While the atmosphere was full of determination and hope, it was also laced with trepidation, and the knowledge that victory was not guaranteed. Even 11-year-old Sean Miller was not there for the first time; she had testified for a similar bill a few years earlier.

And as she stretched to reach the microphone much taller than she was, Miller embodied the feelings of the room when she implored the committee: “The time for promising has passed. Please act.”