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Helena nondiscrimination ordinance

Proponents and opponents of Helena’s nondiscrimination ordinance say the Pledge of Allegiance in a full commission chamber Monday night before the start of testimony.

In a unanimous vote Monday night, the Helena City Commission passed an ordinance to prohibit discrimination in housing, employment and many kinds of public accommodation based on sexual orientation.

Hundreds of people turned out to support or oppose the measure, with the commission opening two additional rooms in the City-County Building to provide audio and video of the meeting.

Mayor Jim Smith gave each side an hour to speak on the measure.

“I believe, and I felt the commissioners believe, that being LGBT is part of the human condition,” said Commissioner Haque-Hausrath, the sponsor of the measure, speaking of lesbian, gay, bisexual and transgender people. “It’s something that people cannot change, and we believe that people should not be discriminated against because of their sexual orientations.”

Some 30 proponents of the measure, including some transgender people, spoke in their allotted hour. Fourteen people spoke against the measure in their hour, with both sides leaving many people still in line when their hour elapsed.

Opponents cited fears of expensive litigation for the city and businesses; inadequate evidence, some said, that anti-gay discrimination is a problem worthy of such a law; and giving what some called “special privileges” to some people at the expense of others.

Eight of the 14 people speaking against the measure mentioned what some called the “bathroom” or “locker room” issue — the concern that voyeurs or pedophiles would exploit the protections for transgender people to gain access to the women’s restrooms or similar areas demanding privacy, or that transgender people themselves would cause alarm in such situations.

An amendment by Commissioner Dick Thweatt passed by the commission Dec. 4 addressed that concern by mandating that in any place where people “ordinarily appear in the nude,” users may be required to use the facilities designated for their anatomical sex, regardless of their gender identity.

But some said the fear of such a situation would make them wary of entering public bathrooms in Helena.

“How will we be able to monitor when a person, male or female, enters the opposing bathroom and says ‘Well, I can do this, because I’m gender identity confused?’” said Jacqui Garcia, citing situations her children might encounter. “We all have been in bathroom stalls and public stalls. There’s gaps between the doors, and you can still see in them.”

Sharon Turner said the situation would put a huge majority of the population at risk. She said she wasn’t afraid gay or lesbian people would set out to harm the children, but rather others with malicious intent.

“How easy it would be for a teenage boy to use this ordinance as a right of passage?” she said.

She said if the measure passed, she would cease her shopping trips into Helena with her children and grandchildren.

Nick Lancette said all our values come from God and described himself as a traditional person.

“My children should have a solid expectation of privacy when they’re in a restroom or a locker room, an expectation of privacy as they define it and as society and family has defined it for generations, not as an advocacy group defines it,” he said. “It seems that we would do well to apply the time-tested principle of first do no harm when we consider the situation at hand.”

Proponents of the measure said the bathroom fears were unfounded.

Sarah Rossi, public policy director of the Montana Coalition Against Domestic and Sexual Violence, said the vast majority of assaults are perpetrated by heterosexual men against people whom they know well, usually in or near a home — and not in a public place like a public restroom.

Transgender people, she said, are more at risk of being attacked than the general population.

Haque-Hausrath offered a pair of amendments to delete or change Thweatt’s amendment that could force transgender people into particular bathrooms.

She said the amendment placed transgender people in danger of having no bathroom at all to use in some situations, and a few people voiced the fear that they or friends experienced using public restrooms when their appearance did not conform to common gender expectations.

Mary Ann Dunwell, of Helena, called for “equal access to the boardroom and the locker room.”

Both Haque-Hausrath’s amendments failed on 4-1 votes.

Bill Gallagher, a Republican member of the Montana Public Service Commission, said the city faces huge risks of expensive litigation, with even individual commissioners and the municipal judge being potentially personally liable — especially because the ordinance was provocative and antagonistic to the teachings of major religions.

Other opponents of the measure said bullying and even hate speech was going to persist regardless of the ordinance, and the government shouldn’t regulate such behavior.

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“We can’t legislate morality and we can’t legislate kindness,” said Liane Taylor. “I think that what we maybe need is more dialogue and not more regulations.”

Proponents of the measure cited several examples of discrimination, bullying and fear if they revealed their sexual orientation.

“I’ve been laughed, been jeered at, I’ve been called names, I’ve been sworn at, told I’m an abomination and I should be put to death,” said Roberta Zenker, a transgender attorney.

Former Helena Mayor Colleen McCarthy said that when speaking at a gay pride event 20 years ago, she experienced verbal attacks like she’d never heard, and would have been physically attacked if not for police. She said she was denied a military trip to Kazakhstan on account of her sexual orientation.

Three current Helena High School students spoke in favor of the measure.

Tyler Amundson, a pastor at St. Paul’s United Methodist Church, warned against turning a blind eye to discrimination until it becomes a convenience.

“We are talking tonight about human rights, not special rights,” said attorney Ron Waterman.

The commission approved an amendment from Dick Thweatt — reversing his own amendment two weeks ago — that would allow attorney’s fees for plaintiffs winning a case in Municipal Court, or for defendants if a case was deemed frivolous. He said the maximum award by the court — $12,000 — would not be enough in light of the likely legal costs of the action.

That measure passed, 3-2, with Commissioners Matt Elsaesser and Dan Ellison opposing it.

The commission rejected a measure by Haque-Hausrath that would have allowed punitive damages. Mayor Jim Smith joined Elsaesser and Ellison in opposing it.

Under the ordinance, people claiming discrimination may bring a claim to Municipal Court but must first establish that the Montana Human Rights Bureau will not pursue the case. Differing legal opinions earlier this year left unclear whether the bureau will take such claims.

If the bureau does not pursue the claim, plaintiffs will have 90 days to take the matter to Municipal Court.

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