The Groundbreaking Minnesota Human Rights Act in Need of Renovation

PUBLISHED IN THE HENNEPIN COUNTY BAR ASSOCIATION

As a nonprofit organization dedicated to advancing gender equity through the law, the Minnesota Human Rights Act (MHRA) is Gender Justice’s favorite statute. The MHRA recognizes and declares that the opportunity to obtain employment, housing, public services, education, and access to public accommodations without discrimination is a civil right. It allows people who have been discriminated against based on their membership in a protected class to sue in order to obtain damages and other backwards-looking relief, along with policy changes and other equitable relief to ensure the discrimination does not continue.

Unlike many federal civil rights statutes which govern discrimination only in limited and targeted areas, the MHRA is a one-stop shop for comprehensive discrimination protections. It prohibits not just employment discrimination, but also education and housing discrimination among others. The MHRA is also groundbreaking. In 1993, it became the first state-level anti-discrimination law in the nation to expressly ban discrimination against transgender people. The first city to do so was Minneapolis back in 1975.

While there is much to celebrate about concerning civil rights in our state, there is still plenty of room for improvement. Unfortunately, the MHRA has some key blind spots around both sexual orientation and gender identity and expression. This is an artifact of the 20-year battle to add sexual orientation to the law. In 1973, the Minnesota Senate was the first state legislative body in the country to pass protections based on sexual orientation in a civil rights bill, but that language was stripped from the final bill before it was passed by the House and signed into law. This kicked off a 20-year effort to add LGBTQ protections to our state’s civil rights law. During that time, Minneapolis and St. Paul passed city civil rights ordinances protecting gay people. But St. Paul’s ordinance was the victim of the fledgling religious right movement that in 1978 held public referendums to repeal nondiscrimination ordinances in cities across the country including Wichita, Kansas, and Eugene, Oregon. Sexual orientation was not re-added to St. Paul’s civil rights law until 1990 after a two-year fight.

Minnesota’s first openly gay state legislators, Allan Spear and Karen Clark, did not give up on efforts to add sexual orientation to the list of protected statuses in the Minnesota Human Rights Act. As detailed in a recent research effort published in the Minnesota History magazine, state Senator Spear was committed to the strategy of incrementalism: “taking baby steps, winning rights for some groups … and building upon those victories.” During his 20-year campaign for gay rights in Minnesota, Spear “reassured colleagues that, contrary to what his opponents suggested, [the MHRA] bill was not an endorsement of homosexuality, but ‘an affirmation of the premise that all people have right[s].’”[1]

The final successful bill, passed in 1993, reflects compromises on gay rights that gave cover to legislators that needed this reassurance. [2] While these compromises might have been necessary to achieve success after a 20-year struggle, today the language in the bill rankles.

Goins v. West Group

One of the drawbacks of being early to recognition of civil rights is that courts, without much precedent to turn to, have greater leeway to temper civil rights victories when tasked with interpreting the laws. One of the most salient examples of this in our state is the 2001 case Goins v. West Group. In Minnesota in 1997, a female transgender employee of West Group was barred from using the women’s bathroom. She went to court, seeking the protections of the MHRA. The case ended up in front of the Minnesota Supreme Court in 2001.[3]

Prior to the Goins case, the Minnesota Supreme Court acknowledged time and again that the legislature “cautioned [the court] against narrowly construing any provisions [of the MHRA].”[4] The statute itself mandates that its provisions “shall be construed liberally for the accomplishment of the purposes thereof.”[5] Nevertheless, the Minnesota Supreme Court concluded that the MHRA cannot “be read so broadly” as to ensure transgender employees can use the proper bathrooms at work. This is because “the traditional and accepted practice in the employment setting is to provide restroom facilities that reflect the cultural preference for restroom designation based on biological gender.” But isn’t the very purpose of anti-discrimination laws to ensure that we break from prevailing discriminatory traditions? Including problematic and discriminatory traditions related to bathrooms? To this day, Goins is a blight on Minnesota’s reputation as a leader on transgender rights.

While the judiciary works on correcting the error of its ways, the legislature has a lot of work to do as well for improving the MHRA for LGBTQ Minnesotans. Transgender protections are currently buried in the act under the definition of “sexual orientation.” “Sexual orientation” is defined as “having or being perceived as having an emotional, physical, or sexual attachment, or having or being perceived as having a self-image or identity not traditionally associated with one’s biological maleness or femaleness.”[6] Sexual orientation and gender identity are related but separate concepts, making the MHRA both inaccurate and confusing. Sexual orientation refers to romantic or sexual attraction while gender identity refers to a person’s sense of their own gender, which may or may not correspond to the sex they were assigned at birth. While the distinction may seem like a minor point, it is one that needs to be explained, corrected, and commented upon any time a transgender client claims anti-discrimination protections for “sexual orientation discrimination.”

 The MHRA provision was based on Minneapolis’s groundbreaking ordinance, the first in the country, expressly protecting transgender people from discrimination. In 1974, Minneapolis enacted an ordinance prohibiting discrimination based on sexual orientation, labeling it discrimination based on “affectional preference.” In 1975, the definition of “affectional preference” was amended to include “having or projecting a self-image not associated with one’s biological maleness or one’s biological femaleness.” [7]  The MHRA provision mirroring the Minneapolis ordinance passed almost 20 years later, in 1993, marking another first for the country. And perhaps the inclusion of transgender Minnesotans as a subset of sexual orientation was necessary at the time to pass a bill protecting trans Minnesotans from discrimination.

Gender vs. Sex

Today, over 225 jurisdictions and 22 states have followed Minnesota’s lead to expressly prohibit discrimination based on gender identity and expression. Additionally, many state and federal courts define “sex” in antidiscrimination provisions to cover the related but distinct concepts of sexual orientation, gender identity, gender expression, and transgender status. This issue was recently before the Supreme Court in the context of Title VII of the federal civil rights act. Title VII prohibits discrimination in employment based on “sex.” The question before the Court in a trio of cases is whether gay and transgender employees are protected under “sex.” We believe this question must be answered in the affirmative. If you are fired for reasons related to your sex assigned at birth, or because of the sex of the people you date, then this is plainly sex discrimination. For those who need more convincing, if your employer fires you because you do not meet their expectation of what you should look like or who you should love based on your sex assigned at birth, this is clearly sex stereotyping, a prohibited form of sex discrimination recognized by the Supreme Court in Price Waterhouse v. Hopkins in 1989. We are currently awaiting the Court’s decisions. Regardless of how the Supreme Court rules, however, LGBTQ Minnesotans are protected thanks to the express terms of the MHRA.

Perversely, the express inclusion of sexual orientation, gender identity, and gender expression in laws like the Minnesota Human Rights Act is a fact cited by anti-LGBTQ groups to argue against LGBTQ protections in other jurisdictions. They argue that the availability of this language suggests that a statute that omits an overt reference to sexual orientation or gender identity cannot be read to offer protections for those categories, even if the statute prohibits discrimination based on sex. At Gender Justice, we believe that all of these forms of discrimination are related, and that any anti-discrimination law that prohibits sex discrimination protects all people from discrimination steeped in stereotypes and expectations based on a person’s sex assigned at birth. But pragmatically, to avoid any argument that removing the language about gender identity and expression from the definition of sexual orientation also removes those rights, the best approach for amending the MHRA to disentangle sexual orientation and gender identity would be to separate out the related but distinct concepts of sexual orientation, gender identity, gender expression, and transgender status, and place them all under the umbrella of “sex.”

While the Minnesota Legislature is working to amend the definition of sexual orientation, it will also want to remove the insinuation that LGBTQ Minnesotans are sexually attracted to children. The definition of “sexual orientation” includes the outrageous and insulting caveat that it “does not include a physical or sexual attachment to children by an adult.” Along the same lines, the statute goes out of its way in an innocuously titled “Construction of Laws” section to vociferously reject the idea that the State of Minnesota “condones homosexuality or bisexuality or any equivalent lifestyle.”[8] While it might have been pragmatic in 1993 to include this language as cover for legislators who could say they didn’t “endorse homosexuality,” this kind of language has no place in a civil rights law, and its erasure is long overdue.

Another pervasive problem can be found in the exceptions permitting discrimination in select circumstances. The exceptions repeatedly single out LGBTQ people for lesser protections. For example, it isn’t unlawful for religious or youth scouting organizations to refuse to hire an LGBTQ person, perhaps a nod to the Boy Scouts which banned LGBTQ participants altogether until 2014, and from leadership positions until 2015. A resident owner of a duplex can refuse to rent the other unit to a gay person or LGBTQ family. Youth teams can discriminate against LGBTQ youth and adults. And religious societies can refuse to admit gay members.[9] The overall effect, of course, is to strongly suggest that the state of Minnesota thinks that it is a lot harder to tolerate LGBTQ people than other protected groups, so discrimination against LGBT people is acceptable in many more contexts.

Particularly insulting and detrimental are the foci for these exemptions. Many of them occur in youth-oriented contexts, endorsing and reinforcing the bigoted myth that gay people are both attracted to and harmful to children. The religion-specific exemptions likely run afoul of the state and federal constitutions’ establishment clauses by singling out and coddling particular religions with negative views of LGBTQ people over all other religions.[10] We know that many religions do not have LGBTQ intolerance as a bedrock of their belief system, and many that used to profess such intolerance are actively rethinking those stances.

Finally, we know that all LGBTQ people also fit in to other protected class categories. For example, everyone has a race, national origin, and identity as a religious or non-religious person. Discrimination, like identity, is not always singular and clear cut. For example, an employer may treat black trans employees differently from white trans employees, and differently from non-trans employees as well.  The MHRA could expressly recognize the intersectional nature of both identity and discrimination by simply changing “or” to “and/or” whenever it lists out the protected classes. This slight edit could signal to courts that discrimination that cuts across protected classes is also common, is also unlawful, and intersectional claims should not be immediately treated with skepticism.

Like the Goins decision, warts on an otherwise excellent civil rights law come from Minnesota taking an innovative approach to preventing discrimination. We would never want to give that up. But perhaps one of the lessons of an incrementalist approach to civil rights is that the next generation of legislators must continue the struggle even after the initial goal is met. The problems we have highlighted have been on the books for 27 years, making them older than our youngest state representative, who it just so happens, is openly gay. We are hopeful that the state of Minnesota will reinforce its reputation as a trailblazer for civil rights protections by providing much needed renovations to the MHRA. In the meantime, we at Gender Justice will continue our fight for gender equity with the tools we have, warts and all.

JESS BRAVERMAN

Jess Braverman is the Legal Director at Gender Justice. Prior to this position she was an attorney with the Hennepin County Public Defender’s Office where she represented clients in felony matters and spearheaded the office’s Special Litigation Unit, focusing on racial profiling in policing. Jess also represented young people in child protective and delinquency matters in Brooklyn, New York. Jess attended NYU Law School where she was an Arthur Garfield Hayes Civil Liberties fellow with a focus on LGBT civil rights.

CHRISTY HALL

Christy Hall is the senior staff attorney at Gender Justice, where she has worked since 2011. Christy practices in state and federal court and has argued before the Eighth Circuit and Minnesota Court of Appeals. Christy graduated magna cum laude from the University of Minnesota Law School. She has also worked for the Hennepin County Attorney’s Office on sexual assault and domestic violence cases and has a particular interest in representing clients who have experienced trauma.

[1] Preston, Joshua. Senator Allan Spear and the Minnesota Human Rights Act, Minnesota History Fall 2016, 76.

[2] Chapter 22 H.F. 585, 78th Legislature. 1993 (Minn.).

[3] 635 N.W.2d 717 (Minn. 2001).

[4] U.S. Jaycees v. McClure 305 N.W.2d 764 (Minn. 1981).

[5] Minn. Stat. § 363A.04.

[6] Minn. Stat. § 363A.03 subd. 44.

[7] Moglin, Emma, How Minneapolis Became the First City in the Country to Pass Transgender Protections, MSNBC June 6, 2016.

[8] Minn. Stat. § 363A.27.

[9] Minn. Stat. § 363A.20-26.

[10] Estate of Thornton v. Caldor, Inc., 472 U.S. 703, 710 (1985).