LGBTQ protection bills go nowhere after years of debate in Legislature

BOISE – For 14 years, a bill to add the terms “sexual orientation” and “gender identity” to the Idaho Human Rights Act to protect LGBTQ residents has been introduced or discussed in some capacity at the Legislature.

And for 14 years, the LGBTQ community and advocates have watched the Republican-dominated House and Senate refuse to advance the bills, leaving gay and transgender residents without the same protections as other Idahoans when it comes to discrimination in housing, at work and in public accommodations.

The 2020 legislative session marks just the latest attempt to “Add the Words,” after Sen. Maryanne Jordan, D-Boise, introduced the legislation as a personal bill. But as often happens, it might not go anywhere.

Thirteen Idaho cities, including Boise, have ordinances in place to protect against discrimination on the basis of gender identity and sexual orientation, and Ada County joined the fray Wednesday night at a meeting of its commissioners to cover unincorporated parts of the county. But advocates note that the ordinances vary in wording and in the process used for investigations and consequences, so the piecemeal approach is not enough to ensure protection.

“We have 13 city ordinances, Meridian being the most recent, and each one is a little different,” said Megan Carter, vice chair of the group Add the Words. “But it’s also only covering a third of the state (by population), and your ordinance isn’t going to cover you when you are traveling.”

RELATED | One third of Idaho school districts have written policies to protect LGBTQ employees

Republican opponents of adding the words claim that protection from discrimination for LGBTQ residents could infringe upon religious liberty — for instance, a photographer or chef whose religious beliefs mean they are opposed to same-sex marriage could not refuse to work for a gay couple at their wedding without facing repercussions.

Some Republicans at the Statehouse say they want to find compromise legislation, with exceptions carved out of any change to the Human Rights Act to accommodate those who cite religion as their reason for refusing services. The Republican who has led negotiations, Senate President Pro Tem Brent Hill, told the Statesman that a compromise is the only way something will get done.

“The Idaho Legislature is never going to just add the words,” Hill said. “Not in my lifetime, maybe not in yours. … We have got to come to some kind of compromise, because in the meantime, some of our brothers and sisters in the LGBT community are getting hurt.”

The early years of Add the Words

The conversations to add the words began around 2006, according to longtime advocate Emilie Jackson-Edney.

“It started with Boise City trying to get sexual orientation and gender identity added to their internal employment policy. And that’s when I got involved for the first time,” Jackson-Edney said.

The city staff wanted to include only sexual orientation, she said, but advocacy groups realized they couldn’t drive wedges in their own communities.

“Then-City Councilwoman Maryanne Jordan saw it and pulled it from the consent agenda, and she said, ‘Don’t bring it back until you add it,’ and they (eventually) brought it back and passed it (with gender identity),” Jackson-Edney said.

At around the same time, the organizations Idaho Equality, Idaho Women’s Network and Interfaith Alliance received a $50,000, three-year grant from The Guild Foundation to accomplish two goals, according to Jackson-Edney. The first was to locate three cities in the state to try to add “sexual orientation” and “gender identity” to their internal employment manuals. The group focused on Moscow, Pocatello and Boise, the homes of the state’s three big universities.

The second goal was to work with the state of Idaho to get the protections added to the Human Rights Act. This led Nicole LeFavour, then a new Democratic state representative from Boise, to bring the concept forward in the Legislature in 2006.

“I had been an activist for a good decade before that,” LeFavour told the Statesman this week. “I had seen the voters and I knew the public sentiment was not as harsh. … In 2010 I was able to get Republicans to co-sign.”

That first bill did not get printed or given a hearing, and LeFavour might have had some GOP backers by 2010, but no action was taken that year either.

“… And then coalition members decided to do a little bit of different marketing,” Jackson-Edney said. “They said they called it ‘Add the Words’ because that was exactly what it was. You can add four more words to the Idaho Human Rights Act. Every year we would continue to ask for a print hearing or to go to hearing and a committee, so that people can tell their stories.”

RELATED | Add the Words Idaho continues 11-year fight for change (2017)

Protests and sticky notes

Mistie Tolman, director of Planned Parenthood in Idaho, remembered mobilizing through listening sessions between 2010 and 2013.

“We brought in not only commissioners from the Human Rights Commission, but also local business owners who are supportive,” Tolman said. “Folks that work in agencies that their job is to bring businesses to the area came and testified how they were having a hard time sometimes getting businesses to come here because they knew that their often diverse staff weren’t going to have protections if they moved to Idaho.”

According to Tolman, people wanted a chance to have their voices heard and explain what it’s like to be an LGBTQ person in Idaho.

“It’s catch-22 they were in, because they would have to come tell their story about being discriminated against without having protections, and in that interim time, be outed publicly, where then they could lose their job or they could lose their house,” Tolman said. “And so it was a really sticky situation.”

The continued refusal to give the bill a hearing at the Statehouse led to frustration among advocates, which resulted in a colorful campaign and protests in 2012.

“We had people write messages on sticky notes and put thousands … throughout hallways and on doors and on chamber doors,” Tolman said.

Jackson-Edney recounted sticking the notes on the doors while lawmakers were in session. LeFavour said thousands of people from across the state sent in personal stories to be written on the small pieces of paper.

“The important thing is they were just finished with the total remodeling of the Statehouse,” Jackson-Edney said. “And so there were some major rules, and every time we challenge the rules, do something different, they would add a new rule.”

The group held a rally on the Capitol steps that concluded with placing sticky notes all over the place, Jackson-Edney said. The protests then began to take different forms, from people walking through the halls with both hands covering their mouths to reading stories in unison in the rotunda.

A second group, Add The 4 Words, came forward to conduct civil disobedience in 2014, and there were multiple demonstrations.

“The first action that we had is before the Senate went into session, we blocked all the door accesses to the floor and back doors in linked arms in a quiet approach,” Jackson-Edney said. “So … we had multiple actions and people were being arrested. I think about 110 people (got) arrested. I got arrested three times.”

LeFavour, who was a state senator from 2008 to 2012 after being in the House for four years, was arrested at least a half-dozen times during the 2014 protests.

With the work of multiple organizations, including Planned Parenthood, the Interfaith Alliance and the ACLU, a hearing was finally secured at the Legislature in 2015.

“The House State Affairs Committee held a hearing on the bill and it lasted four days,” Jordan said. “After four days of heartfelt testimony, the bill was held in committee on a party-line vote. After, there have been attempts to introduce it with no avail.”

Compromise? Republicans come forward?

Jackson-Edney explained that the demonstrations slowed down when Hill, R-Rexburg, announced that he was going to work on a compromise. Talks of such a compromise have continued every year since.

“None of us like discrimination, and I see friends, members of the LGBT community, be discriminated against, and it’s ugly. I just felt like there really was a problem,” Hill said. “Some people believe there is no problem, but I believe there is. And so I would like to see some protections (for) that community.”

Hill, who has been involved with Add the Words negotiations for about eight years, said there should be a way for people on both sides to get most of what they want. But for the LGBTQ community and its advocates, the compromise talk can be irksome, considering the subject is basic civil rights protection.

“This is where I struggle, because 99% of what we do in the Statehouse is compromise,” Jordan said. “But when you are talking about people’s rights, they either have them or they don’t, and that’s what makes the idea of compromise difficult for me.”

Tolman said adding the words is not a push for special rights; all advocates want is to have an Idaho Human Rights Act that is inclusive.

Hill said many lawmakers and proponents on both sides have been relying on the courts too much on the issue. In the most well-known case, a Colorado baker refused to provide a wedding cake for a gay couple. The Colorado Civil Rights Commission found that the bakery discriminated against the couple. After appeals, the baker took the case all the way to the U.S. Supreme Court, which made a narrow ruling in a 7-2 vote that the commission did not employ religious neutrality, violating the baker’s rights. It reversed the decision.

“The courts is not the place to do public policy. With the courts, it’s winner takes all. You either win or you lose,” Hill said. “That’s not the way good public policy is done. What you do is try to collaborate with one another.”

Hill said he believes that if the discussion were about only housing and employment, a consensus would have been reached already. Both sides agree that the big area of contention is in public accommodation.

“Public accommodation is something that’s extremely important in the Idaho Human Rights Act, because that really covers just about everything a person does,” Jackson-Edney said. “It’s coming in to get a coffee and the barista says, ‘I don’t serve people like you, get out of here,’ and there’s no recourse for a gay person.”

Hill said that even with discrimination protections in place, there have to be exemptions, specifically for religious institutions. The recently passed Ada County ordinance does not apply to religious corporations, associations and educational institutions.

“It comes down to fears,” Hill said. “Whether the fears are justified or not, we have to address the fears of the other side to get to a resolution.

“I admit that I am somewhat disappointed. I have been working with individuals for all these years. People who are advocates for the LGBTQ community and the religious side, we have come up with some good legislation that I think would address most of the problems, where both sides can walk away with 90-95% of what they want. But when they start going out to their constituents, neither side is willing to give up that 5%.”

The lack of a resolution

Jordan, who recently announced that she is retiring at the end of her term and not running for re-election, is not confident that her bill will receive a hearing this legislative session.

RELATED | Former gubernatorial candidate Paulette Jordan says she’ll challenge Risch for Senate seat

“I have to be realistic. My hope is to keep the issue alive. My hope is that people will come to understand that this is good for Idaho, will protect Idaho and is good for our economy,” Jordan said. “We (still) have businesses that look at Idaho but are concerned about the lack of protections their employees might have.”

Hill also has announced that he is not seeking re-election. However, he said more people are becoming involved in the issue.

RELATED | Sen. Brent Hill announces his retirement

“I plan on taking a bill that I have not made public, but I plan to pass that information to a couple other legislators who have expressed interest in coming up with a balanced approach,” Hill said. “I don’t want all the work that, not just me, but all these people have done over the years, to just die when I leave.”

This story first appeared in the Idaho Statesman. It is used here with permission.