Oklahoma Sets New Record For Attempts To Discriminate Against LGBT People
by ZACK FORD –
As expected, state legislatures are preparing dozens of anti-LGBT bills this year, some of which are part of the backlash to the Supreme Court’s marriage equality ruling and some of which are a response to the growing visibility of transgender people. One state has already risen to the top with a new record number of anti-LGBT bills, beating Texas’ record of 23 last year. (The Texas legislature does not convene in 2016, or it might have topped its own record.)
Freedom Oklahoma, the Sooner State’s LGBT advocacy organization, is currently tracking at least 26 different bills that in someway limit, threaten, or actively discriminate against LGBT people. Many mirror efforts in other states, but a few are unique and particularly dangerous to the state’s LGBT population. Here’s a look at the many bills LGBT activists are preparing to fight.
The Big Bad
Troy Stevenson, executive director of Freedom Oklahoma, told ThinkProgress that one of the bills is particularly threatening to LGBT rights: House Joint Resolution 1059. Rather than a bill that follows a normal progression through the legislature, HJR 1059 is a proposed ballot initiative, which skips the committee process and doesn’t require the governor’s signature. “We’ve always been good at using procedure to defeat legislation here,” Stevenson explained, but that tactic won’t work here.
HJR 1059, as Stevenson sees it, is about “proactively allowing discrimination.” If approved by voters, it would amend the state constitution to allow any religious organization, along with “any other private business or individual” to refuse to recognize any same-sex marriage. They would be able to refuse to provide services on this basis and remain immune to lawsuits or any consequence from the government.
The initiative also specifically identifies child-placing agencies, guaranteeing that they would never be required to place a child with a family if it violated their religious beliefs, ensuring they can refuse service to same-sex couples. They could be denied no grant for engaging in such discrimination.
Stevenson hopes the measure can be rejected on a technicality. “The ballot measure is unconstitutional on its face,” he explained. The Oklahoma Constitution dictates that no proposed amendment “shall embrace more than one general subject.” Given the variety of different aspects covered by HJR 1059, Stevenson doesn’t believe it could survive scrutiny under this provision.
A Novel Attack On Youth
Stevenson also highlighted a bill unlike any filed in any other state. HB 3044 would prevent any school counselor, therapist, administrator, or teacher from providing students with any guidance or information about “human sexuality” without notifying their parents. In other words, school officials can do nothing to affirm LGBT students without outing them to their families.
“The intent is to keep students from being allowed to talk to counselors about this. Under Oklahoma state law, a 14-year-old can seek counseling without parental consent, so this is a way to try to circumvent that. If a student was LGBT and lived in an abusive househould, they wouldn’t be able to seek help under her legislation.”
The “her” in Stevenson’s comment refers to state Rep. Sally Kern (R), the bill’s sponsor, who is best known for espousing that homosexuality is a bigger threat to the country than terrorist attacks. Kern recently defended her bill, explaining to KFOR NewsChannel 4, “Parents are the ones who ultimately have responsibility for their minor children not schools, and they have the right to be informed of any referral or information anyone in our schools may be giving their minor children.”
Unsurprisingly, Kern’s name appears on many of the other anti-LGBT bills.
The Transgender Backlash
Several bills specifically attack transgender people, seeking to block them from restrooms and other facilities.
- SB 1014: Quite simply, this bill states, “It shall be unlawful for a person to use a gender-specific restroom when that person’s biological gender is contrary to that of the gender-specific restroom.”
- HB 3049: Specifically addressing schools, this legislation would ban transgender students from using sex-segregated facilities in accordance with their gender identities. The only accommodations they could be afforded are unisex restrooms or “controlled use” of employee facilities.
- SB 1323: Doubling down on HB 3049, this bill threatens school districts’ state aid if they accommodate a transgender student. If a single parent complains about such an inclusive policy, the only way a district could save its funding would be to reverse the policy and/or force transgender students to use single-occupancy facilities.
In addition to Kern’s counseling bill and the legislation that specifically targets transgender students, two other bills would threaten the safety of LGBT youth.
- SB 21: The “Religious Viewpoints Antidiscrimination Act,” held over from last year, would create protections for students to express religious viewpoints, including at school events and graduation ceremonies. Though it largely addresses prayer and religious rhetoric throughout schools, the bill would also run counter to anti-bullying policies that protect LGBT students. Though schools can generally discipline students for speech that disrupts the learning environment, some students might claim that expressing their anti-LGBT views was protected religious speech as guaranteed by this legislation.
- HB 1598: Though other states are increasingly banning reparative therapy for minors to protect them from the harmful and ineffective quackery, this bill does the opposite. It actually makes it illegal to ban ex-gay therapy. Introduced last year, this bill only made it as far as passing out of the House Children, Youth, and Family Services Committee, which Kern chairs.
Discrimination In Disguise
A variety of different bills use language about “religious freedom” and “conscience” to enable discrimination against LGBT people. Some specifically address the state’s Religious Freedom Restoration Act (RFRA):
- HB 1371: This would make a small addition to the Oklahoma’s RFRA to make sure it was clear that the government has no compelling interest in forcing anyone to “participate in any marriage ceremony, celebration, or other related activity or to provide items or services for such purposes against the person’s religious beliefs.” In other words, discrimination against same-sex couples by religious wedding vendors would be protected under the law.
- SB 898 – This bill updates RFRA with provisions that make it clear that religious businesses can discriminate, even if it means violating local nondiscrimination practices. It expands the definition of “exercise of religion” to include the “ability to act or refuse to act” in accordance with one’s beliefs, and ensures that RFRA can be used as a defense even when the government is not a party to a case, thus opening the door for RFRA defenses against those who might sue for discrimination.
- SB 440: Introduced last year, this bill was called the “Oklahoma Religious Freedom Reformation Act of 2015” — reformation, not restoration. It would expand the definition of “religious entity” to include “a privately-held business operating consistently with its sincerely held religious beliefs, with regard to any activity described in this act and amendments thereto.” It also contains exemptions for religious entities to use beliefs “regarding sex, gender or sexuality” to treat a marriage as invalid or to likewise refuse services, accommodations, advantages, facilities, goods, privileges, counseling, adoption services, foster care, or employment benefits. Like other bills, it explicitly protects those entities from any legal action that might arise in response to them engaging in any of those forms of discrimination.
- SB 1289 – Mirroring other “preemption” bills passed previously in Arkansas and Tennessee, this bill dictates that no municipality can pass a law that goes beyond what is set by state law. Because the state does not protect LGBT people from discrimination, this would effectively ban the passage and enforcement of such protections. It would invalidate the sexual orientation protections that exist in Oklahoma City and Tulsa, and the sexual orientation and gender identity protections that exist in Norman.
- SB 1328 – Instead of fiddling with RFRA, this bill would create a new “Oklahoma Right of Conscience Act.” A fairly blatant license to discriminate, it would ensure that no individual would ever have to provide any service “used in a marriage ceremony or celebration of a specific lifestyle or behavior” or “used to promote, advertise, endorse or advocate for a specific marriage, lifestyle or behavior.” Anybody who engaged in such discrimination would be protected from any civil claim, cause of action, or penalization from the government.
- HB 1597: A bill introduced by Kern last year, this legislation is perhaps the most naked endorsement of discrimination against LGBT people. It literally states, “No business entity shall be required to provide any services, accommodations, advantages, facilities, goods or privileges related to any lesbian, gay, bisexual or transgender person, group or association.”
The Marriage Backlash
Many of the bills speak to a backlash against the arrival of marriage equality. Almost all of them — HR 1032 and SB 973 being the only exceptions — are leftover from last year’s legislative session. Now that the U.S. Supreme Court has ruled in favor of nationwide marriage equality, Oklahoma lawmakers may be more motivated to consider these measures that try to restrict or compensate:
- HR 1032: Resolutions are not technically laws, but this one declares that “natural marriage between one man and one woman as recognized by the people of Oklahoma remains the law, regardless of any court decision to the contrary.” It calls on the Attorney General to continue defending against marriage equality and would establish a fund to pay any fines or levies state government officials might face for refusing to recognize same-sex marriages.
- SB 973: The “Preservation of Sovereignty and Marriage Act” would prevent the government from funding the “licensing or support of same-sex marriage.” Thus, any clerk who did her job to offer a same-sex marriage license would no longer receive a salary. A clear bid to block marriage equality, the bill would likely not be upheld in court, despite its own provision that “the courts of this state shall dismiss any challenge to any portion” of the act.
- SB 805: Another version of the “Preservation of Sovereignty and Marriage Act,” introduced last year.
- HB 1599: Yet another version of the “Preservation of Sovereignty and Marriage Act,” this one was previously filed last year. Given the reintroduction of the new Senate version, this approach of totally cutting off administrative support for same-sex marriage without technically banning it may be a preferred approach for lawmakers.
- SB 811: Another apparent precautionary measure, this bill ensures that ministers can officiate marriages even if they oppose the requirement of a state-issued marriage license. It would seemingly protect religious officials’ ability to solemnize marriages even if they refused to abide by any changes to the process for state marriage licenses.
- SB 733: As ThinkProgress previously reported, this bill requires marrying couples to undergo a blood test and prove they do not have communicable syphilis “or other communicable or infectious diseases.” As written, the bill suggests that if a physician identifies a disease that is communicable (HIV, HPV, the flu), the couple cannot obtain a marriage license.
- SB 724: This bill establishes covenant marriage, a form of union in which couples undergo premarital counseling and accept limited conditions for divorce. Only three other states currently offer covenant marriage: Arizona, Arkansas, and Louisiana. As it was introduced last year, the bill limits covenant marriage to couples of one man and one woman, so it remains to be seen if future considerations would open it to same-sex couples.
- SB 478: The “Protection of Religious Freedom in the Sanctity of Marriage Act of 2015” would guarantee that no individual or religious entity would ever have to recognize a same-sex couple’s marriage or provide any service related to that union if it violated their religious beliefs.
- HB 1663: An amusing placeholder bill filed by Kern last year, the “Marriage Act of Oklahoma” creates a new section of law not to be codified in the state code called the “Marriage Act of Oklahoma.” It’s unclear if she might use it to substitute a new piece of related legislation.
A Light In The Dark
Among all these other bills, there is actually one that does something good for LGBT people. HB 1345, introduced last year, would create statewide employment protections on the basis of sexual orientation and gender identity. Unlike other nondiscrimination bills, it does not take up housing or public accommodations, only employment. Given how it stalled last year and the greater interest in anti-LGBT bills, HB 1345 might not have much promise for advancing.
“They pretty much covered it all,” Stevenson said. “We’re like the canary in the coal mine at the moment. They’re testing anything.”
Freedom Oklahoma is working to educate lawmakers, particularly on transgender issues. “We’re at the Capitol every day,” he reported, adding that they have found a “large bench of transgender advocates” who they are making sure lawmakers meet and get to know.
Most importantly, Stevenson just hopes the media keeps discussing it. “Fortunately, once you get people talking about it, the absurdity and cruelty of this legislation comes out. There’s not much that media can do to spin it the other direction.” He’s confident the anti-LGBT bills can be defeated, and if not, a team of pro bono attorneys are already preparing to challenge any of the bills that pass. The fight will not end anytime soon.