Memorandum
City of Lawrence
Legal Department
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TO: |
David L. Corliss, City Manager |
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FROM: |
Toni R. Wheeler, Director of the Legal Department
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C: |
Cynthia Wagner, Diane Stoddard, Jonathan Douglass |
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Date: |
September 21, 2011 |
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RE: |
Ordinance Prohibiting Discrimination Against Persons Based Upon Gender Identity – Ordinance No. 8672 |
At the City Commission’s regular meeting on September 6, 2011, the Commission directed staff to prepare an ordinance for the City’s Commission’s consideration on September 27, 2011, amending the City’s Human Relations Code (Chapter X) to prohibit discrimination based on a person’s “gender identity.” Attached please find Ordinance No. 8672.
There are a number of cities and states that have enacted laws prohibiting discrimination based upon a person’s gender identity. “Gender identity” is in essence a person’s expression of maleness or femaleness, which may or may not be consistent with the person’s biological sex. Since there is no federal law prohibiting gender identity discrimination, there is no definition that is applied across the nation. Therefore, states and cities have crafted their own definitions (see attached table).
The definition of “gender identity” used in the attached ordinance is, “the gender-related identity, appearance, behavior, and other characteristics of an individual, as perceived by the individual or another, and without regard to the individual’s actual or assigned sex at birth.” This definition is consistent with the concepts and phrases used in many other states’ and cities’ laws that prohibit discrimination on the basis of gender identity.
How the term will be applied after it is adopted, if adopted, with depend on the facts of each case. The definition of the term, “gender identity” cannot be written to address each and every fact scenario that may arise. How a person expresses his or her gender is too varied. The proposed definition of gender identity is not, in the Legal Department’s opinion, over broad or vague such that it would render the law invalid.[1] Similar challenges defining other protected classes in our local ordinance exist. For example, whether a certain set of beliefs or practices constitutes “religion” depends on the particular facts of the case.
The ordinance adds the term “gender identity” to the list of protected classes throughout Chapter X. If it is adopted, discrimination on the basis of gender identity in housing, employment, and public accommodations, as set forth in the code, will be prohibited in the City. If the Commission desires revisions to the ordinance, staff requests specific direction.
Action: Receive Ordinance No. 8672 and adopt on first reading, if appropriate.
[1] There are no published Kansas court cases which have reviewed a definition of “gender identity.”