When city commissioners last week authorized research into adding sexual orientation and gender identity to the city’s list of protected classes, the process hung up on one point. What exactly is “gender identity” and can it be defined for purposes of law?
The city administration, with help of the city attorney’s office, drafted the proposed amendment to the city’s discrimination ordinance. But city administrators chose not to define gender identity in the proposed amendment because there was a question of whether commissioners wanted to include it along with sexual orientation.
Now that a majority of commissioners support adding it, the city has been charged with finding a suitable definition to add to the ordinance. The amendment would also create a local process to enforce the protection of the sexual orientation and gender identity classes. The Human Rights and Advisory Board would become an investigative and quasi-judicial body, with subpoena powers and the ability to issue fines/penalties. Additional staff might be necessary to take on additional responsibilities if the amended ordinance is passed.
Larry Hackney, city human resources specialist and liaison to the HRSB, said the city is looking at communities that have implemented similar ordinances, such as Boulder, Colo., and San Francisco, for guidance in formulating a definition of gender identity. Hackney also said it might be a good idea to ask an organization such as the Flint Hills Human Rights Project for their definition.
But some human rights and gay rights groups don’t even define gender identity. Sam Brinton, the president of Kansas State’s Lesbian Bisexual Gay Transgender Questioning and More group, said his group doesn’t have a definition because it accepts every one, no matter what their situation.
“It is so easy for my student group to deal with this matter since we don’t have to define gender identity when dealing with a student,” he said.
Hackney said that it is too early to have a discussion or consensus on the definition. But that definition will become important because, as Mayor Bruce Snead said, people need to know what the prohibited practices under the discrimination ordinance are. He also said it might be necessary to provide examples of gender identity discrimination in various literature to help people understand what it actually is.
Commissioner Jim Sherow agrees. “It’s useless to put something in the ordinance that is not properly defined or properly enforceable,” he said.
Commissioners were provided with a copy of Boulder’s discrimination ordinance, which includes gender identity, for reference at last week’s meeting. They seemed to agree that it was too “bulky” to under stand clearly.
Boulder’s ordinance defined gender identity this way: “A person’s various individual attributes, actual or perceived, that may be in accord with, or sometimes opposed to, one’s physical anatomy, chromosomal sex, genitalia or sex assigned at birth.” Boulder also defined several other related terms. Two of the more relevant definitions are: Sex: “Biological sex is the sum of a person’s physical characteristics.”
Gender: “A psycho-social role, corresponding to norms of male or female behavior and judgments in a particular culture at a particular time, most prominently exemplified by dress and physical appearance, including secondary sexual characteristics.
Hackney said Boulder’s ordinance was extensive because they felt they had to go to great lengths to make sure it was defined properly. He said it’s always better if a definition is simpler.
Commissioner Loren Pepperd said he would have to hear a definition before he could vote “yea, nay or sideways” on the discrimination ordinance.
Commissioner Bob Strawn is concerned with another definition, though. The American Psychiatric Association’s Diagnostic and Statistics Manuel IV defines Gender Identity Disorder as a mental disorder.
Strawn said that he doesn’t necessarily think gender identity is the root of a mental disorder, but he’s wary because some professionals consider it one.
“I feel strongly that we should not codify discrimination by what professionals call a mental disorder,” he said.
The inclusion of gender identity as a mental disorder is controversial, as the American Psychological Association believes that including gender identity as a mental disorder “pathologies” it. Also, one of their policy statements says the organization “supports the passage of laws and policies protecting the rights, legal benefits, and privileges of people of all gender identities and expressions.”
Although Strawn and Pepperd agree with their fellow commissioners on the need for a clear definition, they both also feel that the amendment is unnecessary.
“I believe we have ordinances out there that cover pretty much everything,” Pepperd said.
They both have concerns about implementing an ordinance that has no precedent in the state. Strawn said the three “liberal commissioners” are going to put a law into effect without an idea how it’s going to be applied.
Sherow disagrees with that argument. He says Kansas has a rich history of moving forward with laws that had no precedent in the state or country, and that it’s not a valid reason not to pass an ordinance like this. He pointed out that Kansas was the first state to put the issue of women’s suffrage in front of voters, and said this ordinance is just another example of the state’s heritage.
“It’s surprising to me that some people want to turn their back on this,” he said.
