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Think all discrimination is illegal? Think again

Posted: 6:00 AM, May 10, 2016
Updated: 2016-05-10 09:15:04-04
Think all discrimination is illegal? Think again

COLUMBUS, Ohio — Kira Esperante took several minutes to process what she had heard.

Her bosses had told her they noticed her appearance had changed. She no longer looked like a male, and they did not think it was good for the law firm’s image. They offered her a choice: Quit or face the partners to explain her situation. 

“It was sickening,” Esperante said. “I was forced to make a choice.”

She quit. That was in 2009. Since then, she has struggled to land another job. The phone calls would turn silent after a face-to-face interview.

Esperante, an attorney, faced a hard truth that other gay, lesbian, bisexual and transgender people in Ohio have learned: The state has no anti-discrimination law to protect them. That means people like her can face discrimination in employment, housing and public accommodations every day with few local laws to protect them.

And while state lawmakers have proposed bills that would provide those protections for the past 10 years, Republican lawmakers have been reluctant to move such legislation forward.

About the Bill

The latest version of the bill, called HB 389, was introduced last November by two Democratic lawmakers.

The bill has not received any committee hearings, while other bills, such as the Pastor Protection Act, have received at least two.

The Ohio Student Religious Liberties Act of 2016, also known as HB 425, was introduced two months after the anti-discrimination bill, but the former cleared the House within three months. The vote was 73-22.

Rep. Nickie Antonio, D-Lakewood, has been a primary sponsor of the anti-discrimination bill since 2011. Antonio said the latest bill has been refined to ensure Ohio's discrimination law will include protections related to sexual orientation, gender identity and gender expression, if the bill becomes law.

“The spirit of the bill has always been the same: To provide those protections for members of the LGBT community in housing, employment and public accommodation,” she said.

At least 23 states and the District of Columbia have laws that prohibit discrimination based on sexual orientation, but not all of those states have protections against discrimination based on gender identity, according to data by the American Civil Liberties Union.

The bill is mainly backed by House Democrats. Antonio said she has discussed this issue with Republican lawmakers, but both parties were not able to find common ground because the bill would make major changes to Ohio’s discrimination law.

“There’s still some discussion going on as to whether or not there could be something that was not so sweeping to begin with,” she said.

But Antonio, who is is one of two openly gay lawmakers in the Ohio legislature, believes this bill is best for the community.

Approximately 320,000 LGBT adults live in Ohio, but only 20 percent of those individuals are protected by local nondiscrimination ordinances, according to 2014 data by Movement Advancement Project.

A 2011 survey found that transgender people and individuals who do not conform to gender norms experience unemployment at twice the rate of the general population at the time of the survey. The rate of unemployment is even higher if they are also person of color.

“It’s hard for me because it gets to the fundamental issue: Are members of the LGBT community full citizens or not?” Antonio said. “It’s very difficult to consider going halfway.”

Grant Stancliff, a spokesperson for Equality Ohio, said the bill would help lift a weight of fear and anxiety off of LGBT people when they are in their workplaces.

"It's not everywhere (that has) this constant sense of hostility," Stancliff said. "It is for some people who need a rule to do the right thing."

The Visible Struggle to be Invisible

Esperante said she was mortified when her employers confronted her about her transition. 

"As a trans, your goal is not to identify with any particular group and stand out; you want to fade in," she said. "You want to disappear."

Esperante, of Amelia, was born a male, but she longed to be female since she was 6.

“I looked at girls and I thought they were beautiful, and I wanted to be like them,” Esperante said. “I started to really resent and hate the world that I was in.”

Esperante was unhappy with who she was, but she tried to conform to her gender. When she was in school, she became a “jock” by playing every sport. After high school, Esperante joined the Marines, hoping to "fix the problem."

“Unfortunately, that didn’t work,” Esperante said.

Even after establishing a career in law and being married with three children, Esperante was still not at peace with herself. She knew she was living a double life and struggled with depression. She felt compelled to take action — even if her transition would eventually take a toll on her marriage. 

In 2007, she decided to go through hormone therapy.

The therapy caused her hair to grow longer, her facial features to become more feminine, and her breasts to grow. 

Esperante said it wasn't long until people started to notice her transition. It cost her a career. Since 2009, Esperante has been working as a solo attorney. 

Challenges From the Republican Party

Ross McGregor, a former Republican state representative who sponsored past versions of the bill, said he introduced the bill because he is opposed to discrimination.

Although he believed the bill was necessary for the state, a number of his colleagues in the Republican caucus were not supportive of the bill.

“Some of it was ideological, others were more along technical lines of the legislation," McGregor said. “Some people did not believe those protections are needed.”

In 2009, five Republicans joined all Democrats in backing the anti-discrimination bill for a floor vote. That was the furthest the bill has moved in the state legislature when Democrats controlled the House. The vote was 56-38.

When the bill was presented to the House floor that year, former Rep. Jeff Wagner, R-Sycamore, said the bill was not about people being denied the right to basic needs, instead it was about “forcing acceptance of a lifestyle that many people disagreed with.”

“If I must blindly accept everyone’s lifestyle to be considered nondiscriminatory, then that is a price I’m not willing to pay,” Wagner said.

Although Matt Huffman, a former Republican representative from Lima, acknowledged discrimination as a real and persistent problem, he added that the bill would create division and a new set of lawsuits that would burden small businesses.

“Maybe we should leave it up to the folks who are trying to run their own business ... to make those decisions for themselves,” Huffman said.

The bill “smacks dead on the face of religious beliefs that believe these issues are morally wrong,” said former Rep. Lynn Wachtmann, R-Napoleon.

“Shame on you for bringing this bill up and having no respect for those with religion who believe in these issues,” Wachtmann said. “Keep your hands and your immoral beliefs to yourselves. Don’t punish those who disagree with you”

Some lawmakers would ask for examples of discrimination based on sexual orientation or gender identity, McGregor added.

“I think it’s not so much to showing you concrete examples, but it is saying that, as a state, we do not support discriminatory practices to whatever level they may occur,” he said.

Although the bill passed the House in 2009, it did not pass the Senate.

Ohio Is Not the Only State

But Ohio is not the only state struggling with the discrimination issues.

Last year, Indiana Gov. Mike Pence passed a bill known as the Religious Freedom Restoration Act, which opponents claim would allow business owners to deny services to gays and lesbians for religious reasons.

However, Pence said the bill is not about discrimination.

Pence later signed revisions to the piece of legislation, which specify that the religious freedom law cannot be used to discriminate individuals based upon sexual orientation and gender identity.

In North Carolina, a new bill that would stop cities from passing anti-discrimination ordinances was signed into law in March. Advocates of LGBT rights have filed lawsuits and corporations have threatened to boycott over the passing of the bill.

Mississippi recently passed a bill that permits religious organizations and businesses to deny services to the LGBT community based on religious objections. Employers and school administrators would be allowed to control access to bathrooms, spas and locker rooms.

Georgia Gov. Nathan Deal announced in March he would veto a bill that would violate the rights of the state’s LGBT community. The announcement came after increasing pressure from major corporations such as Disney and Home Depot.

No Teeth

Without a statewide anti-discrimination law, future employment may prove difficult to individuals who were fired based on their sexual orientation or gender identity, said Scott Knox, a Cincinnati attorney who specializes in LGBTQ rights.

“When you go to your next employer to get your job, because you just got fired, what do you tell them you got fired for in your previous job?” Knox said. “This type of discrimination is the gift that keeps on giving."

After Esperante quit her job, she tried to look for another job in other firms. The phone conversations were hopeful, but no one would respond after a face-to-face meeting, even for volunteer positions.

“I don’t have an arm growing out of my back," Esperante said. "The truth is I have all of these skills but I can’t even get a volunteer job. It’s just the businesses that seem to be concerned that I’m going to scare their clients.

“I’ve become one of the disenfranchised.”

Knox said the state should have nondiscrimination legislation for LGBT people because good employees should not be turned down or asked to quit on the basis of sexual orientation or gender identity.

“I always thought that Republicans should be lining up to support nondiscrimination legislation.” Knox said. “If we have someone like this person — who is a great worker, does her job wonderfully — as a society, we should want to keep them employed."

At least 29 Ohio cities and counties had anti-discrimination ordinances as of 2012, according to ACLU of Ohio.

Cincinnati is one of those cities that has a nondiscrimination ordinance, but Knox said the law is “extremely weak.”

He said the maximum fine is only $1,000.

“But it does help,” Knox said. “Even an ordinance without a lot of teeth helps because it gives me some legal framework to hang my hat on. Otherwise, I can’t even make the phone call.”

Business Groups on Neutral

The National Federation of Independent Business in Ohio, a lobbying organization for small businesses, has taken a neutral stance on this issue, said Chris Ferruso, legislative director for the organization.

Ferruso said his organization and its members do not condone any form of discrimination, but he added the state should improve its employment laws before moving forward with this bill. Ferruso said the statute of limitations for filing a claim in Ohio should be shorter and in sync with federal law, which is one year.

“It provides a little bit more certainty and predictability for small business owners in particular that do not have counsel in house,” Ferruso said.

The Ohio Chamber of Commerce does not oppose the bill, said Don Boyd, the director of labor and legal affairs for the business advocacy group.

But Boyd also said the chamber of commerce, which is Ohio’s largest and most diverse statewide business advocacy group, has not been involved with the bill up to this point because it has not had any hearings.

“I think, at the end of the day, we want to make sure that Ohio’s future business competitiveness is good for Ohio and enhances respect for all employers and all employees, regardless of their orientation,” Boyd said.

What’s Next?

Rep. Denise Driehaus, D-Cincinnati, who is also a primary sponsor of the bill, said many Ohioans do not realize that there is no statewide anti-discrimination law because many municipalities have implemented local laws to address the issue.

“The legislature doesn’t seem to want to act on it,” she said. “Ultimately it’s a leadership decision. It’s interesting that we seem to be pretty far behind public opinion on this one (issue).”

A survey showed that nearly 80 percent of respondents who identified as Democrats said they favored anti-discrimination laws related to sexual orientation and gender identity, and 61 percent of people who identified themselves as Republicans support it.

For McGregor, passing a law that would protect individuals from discrimination based on sexual orientation or gender identity was always a question of  “when” instead of “if.”

Eight in 10 young Americans between the age of 18 and 29 support non-discrimination laws for LGBT people while 61 percent of people age 65 and older were in favor of such a law, according to a 2015 report by the Public Religion Research Institute.

“I believe it’s going to occur,” he said. “It’s just a matter of continuing that dialogue.”

It would be difficult for this bill to move forward because it’s a presidential election year, but that does not mean the dialogue should stop, McGregor said.

The House committee has yet to schedule a first hearing since the introduction of the bill, but Driehaus said the Republican majority is obligated to hold at least one hearing for every bill that is introduced.

Rep. Tim Brown, R-Bowling Green, said he would support the bill if it reaches the House floor for a vote and he hopes this bill or some version of it will pass.

Brown said every person should feel welcome to live and work in Ohio, free from any concerns of discrimination.

“The governor has already indicated his understanding of the concern, and his willingness to be supportive of protection in employment,” Brown said. “This bill goes further, and I believe it is necessary.”  

Gov. John Kasich had signed an executive order banning discrimination based on sexual orientation for state employees, but he omitted protections for state employees on gender identity, which were included during the tenure of the former Ohio governor, Ted Strickland.   

Brown said Republican lawmakers have not discussed the bill, which is not unusual because the bill has yet to receive any hearings in the committee.

“I don’t know how my colleagues feel about it,” Brown said. “I think in general, the public and more and more Republicans realize that to be a solidly competitive economic state, we have to be welcoming of all people and ensure the protections of those people.”

Speaker of the Ohio House Cliff Rosenberger, R-Clarksville, said there are still conversations between those in the LGBT community and individuals religious freedom groups to find a middle ground on how to move forward in this issue.

“No one in the religious community is looking to be discriminatory nor is anybody in the LGBT community,” Rosenberger said. “So I think there’s still room there, and there’s still some conversations. We’ll see how that continues to go forward.”

Brown, also openly gay, said he sees a Republican caucus that is evolving and coming to terms with LGBT issues. He added that the bill may have a stronger chance of being considered if it contains language that would reaffirm the rights of religious groups.

Esperante said she has mixed feelings about the effectiveness of the bill as employers can find multiple reasons to deny employment.

“You can find anything if you want to and evade those laws,” she said. “People are going to feel the way they do whether there’s a law telling them that it is wrong or it is not.”

However, Esperante still believes a law to protect individuals against discrimination based on sexual orientation and gender identity is necessary.

She said the law can be used as an opportunity to increase awareness and provide some assurance to members of the LGBT community.

Joshua Lim is a fellow in the E.W. Scripps School of Journalism Statehouse News Bureau. You can reach him at  joshielim93@gmail.com   or follow him on Twitter at @JoshuaLim93.