Analysis: Lawmakers see culture war in anti-LGBTQ appeasement

In an effort to avoid conflict over LGBTQ protections, the Legislature’s leadership gutted its internal anti-discrimination policies, critics said.

Facing the ire of social conservatives, top lawmakers chose not to uphold the Legislature’s protection of employees and lawmakers from sexual-orientation or gender-identity-based discrimination. The Management Council instead removed all protected classes from the Legislature’s internal anti-discrimination policy — a move critics described as a dodge veiled in the pretense of equality.

One leading Republican accused the Legislature’s Management Council of caving to his party’s far-right wing, and opening the door for a legislative session of “culture wars.”

“We finally had some money come in to work on our structural budget problems but all of a sudden Management Council did something that thrust us right back into a culture war,” Rep. Dan Zwonitzer (R-Cheyenne) said. Zwonitzer, the current chairman of the House Corporations Committee and incoming chairman of the House Revenue Committee, is not on the Management Council but testified against the policy rollback.

“Wyoming is one of the last states left that allows a religious faction to control our politics,” he said. “We continue to uphold our banner as a discriminatory state.”

Socially conservative lawmakers have pressed for the reversal of the Legislature’s new anti-discrimination policy. The Legislature’s Management Council had voted unanimously in February to add sexual orientation and gender identity to the list of classes protected from discrimination. The change had expanded existing language that protected people from discrimination based on their race, religion, color, sex, national origin, age or disability. Wednesday, opponents of the language asked lawmakers to remove the new protections.

The committee voted 7-6 to strip all protected classes from the policy. The policy now reads “Any form of discrimination or harassment is a violation of this policy.”

All five committee Democrats and one of the eight committee Republicans, Senate Vice President Michael Von Flatern (R-Gillette), voted against the change.

Proponents said the measure brings the Legislature’s policies in line with the Wyoming Constitution, which prohibits discrimination without specifying who can be discriminated against or why.

“Any policy that we do here today neither adds to nor diminishes those rights under the Constitution,” Senate Majority Leader Drew Perkins (R-Casper) said. The new language “most closely resembles and respects the founders intent and the language that we find in the Constitution and its not limited to just sexual orientation or gender identity but it extends to other attributes,” he said.  

Minority party lawmakers disagreed. The Wyoming Constitution has strong guarantees for equal rights, House Minority Floor Leader Cathy Connolly (D-Laramie) said. But, “we operationalize our Constitution with law and policy.”

Duck and cover

Lawmakers dodged ruling on a controversial subject by removing all classes, said Michael Duff, a professor at the University of Wyoming School of Law who teaches labor law.

“What [lawmakers] are saying here is ‘we’re trying to figure out ways to not say we protect against discrimination based on sexual orientation,’” Duff said. “The way we’re going to get there is we’re going to cut out the specific protected classes that we listed in the policy and in that way we’re going to duck the whole question.”

“Think about how clumsy this is,” Duff continued. “We know there’s an issue, we know there’s this struggle about whether discrimination extends to sexual orientation, so here’s our solution:” cut all protected classes.    

“The reason we protect those categories is because historically those are people who face discrimination or harassment,” he said.

Ultimately, however, Duff and others said legislative staff will still have recourse in the face of discrimination or harassment under the new policy. They will have to turn to federal and state law instead of their employer’s policies, however.

Become a supporting member today and NewsMatch will double your donation

Neither state nor federal law include sexual orientation or gender identity among protected classes. Federally, it remains unsettled whether protecting people against discrimination based on their sex also protects them against discrimination based on sexual orientation or gender identity. Courts have split on the question, Duff said.

The U.S. Equal Employment Opportunities Commission, which is responsible for enforcing federal laws on labor discrimination, interprets federal law as forbidding discrimination based on sexual orientation and gender identity. It considers those characteristics protected by the prohibitions of sexual discrimination, according to its website.

“To me this entire exercise is rhetorical,” Duff said. Lawmakers are trying to “defer having any position on this and just say ‘we’re against discrimination.’”

Still, he said, the policy change would weaken a complaint of discrimination based on a protected class. “You don’t have an open-and-shut argument within the organization to say that the organization’s policy was violated,” Duff said.

An LSO employee who wants to report harassment or discrimination will still follow the same procedure as before, LSO director Matt Obrecht said Thursday. “It doesn’t change anything for employees,” he said.  

If a lawmaker is accused of discrimination, the chamber he or she belongs to can still take actions to sanction the offender, Senate Minority Floor Leader Chris Rothfuss (D-Laramie) told WyoFile. “Constitutionally the Legislature polices the Legislature and we have broad discretion on that,” he said.

Rothfuss argued before the vote that the change would allow discrimination to flourish in Wyoming’s most visible public institution. The changed policy would require criminal prosecution to resolve a discrimination or harassment claim, instead of an internal resolution based on a lower harassment or discrimination threshold shy of an outright crime, he told his fellow lawmakers.

“To me that seems like a pretty substantial rollback of a policy that is designed to protect our LSO and the Legislature from discrimination and sexual harassment,” Rothfuss said. “That to me would be the most difficult barrier in any workplace to a sexual harassment and non-discrimination [complaint] that I can think of: If you haven’t broken a federal or state law you’re innocent.”

Blow for LGBTQ advocates

The policy rewrite is an ill-timed defeat for LGBTQ advocates. Wednesday’s Management Council meeting suggested that social crusaders like Rep. and Senator-elect Cheri Steinmetz (R-Lingle) and the outgoing Rep. Nate Winters (R-Thermopolis) increasingly represent the dominant Republican party. And without the severe budget deficits of recent sessions to occupy lawmakers’ attention, the 2019 session which convenes Jan. 8 could see heightened battles over social issues, wags say.

Religious right lawmakers were joined by Wyoming Republican Party Chairman Frank Eathorne, who also accompanied Steinmetz in May when they led a crowd of supporters to pressure a community college board of trustees to abandon LGBTQ protections in the school’s policy. At that time, Steinmetz argued language protecting people from discrimination for sexual orientation and gender identity were “inconsistent with the values of the overwhelming mainstream majority” of Wyoming citizens.

The Management Council is composed of the leadership from both parties in the House and Senate. The makeup — five Democrats and eight Republicans — makes it one of the most politically balanced committees in the Republican-dominated Legislature. Members are among the body’s most seasoned and long-serving solons. They have appeared to show interest in a more inclusive legislative arena, reacting to anti-gay testimony at a committee meeting in Sundance last November with new training for committee chairmen, for example.

Prior showdowns over LGBTQ issues have taken place in more socially conservative parts of the state — like the Eastern Wyoming Community College trustees meeting in Torrington, and a controversial committee meeting in Sundance. The Management Council meeting was in Cheyenne, however, giving LGBTQ advocacy group Wyoming Equality a better opportunity to organize. Supporters of the anti-discrimination protections outnumbered those present to oppose the policies.

But the group failed to sway the Legislature’s leading Republicans, who voted as a block on the measure with the exception of Von Flatern, who was absent and voted by proxy against the removals.

With the exception of Perkins, there was little comment from the Management Council Republicans before the vote.

Road to a “discriminatory state”

Rothfuss and Von Flatern added the protected classes last year, during an effort by the Management Council and LSO to strengthen sexual harassment policies. The work was motivated in part by the Me Too movement then sweeping the nation, including some state capitols like Colorado’s, Obrecht said. The updated policy passed Management Council unanimously at a Feb. 10 meeting.

Winters, a pastor who has opposed LGBTQ protections and supported policies opponents called discriminatory, told the committee he and other lawmakers objected to the new policy. Last session, he declined to sign a form acknowledging he received and understood training on the anti-discrimination and sexual-harassment policy, Winters said.

Around a dozen lawmakers declined to sign the forms, LSO director Obrecht told WyoFile. The forms are similar to those given new employees at a company to ensure there is a record of discrimination and harassment training, he said. The hold-outs were not made public at the time.

Steinmetz later requested the Management Council review the policy in a public forum, according to officials.

On Wednesday, Steinmetz, Sen. Anthony Bouchard (R-Cheyenne), and Senator-elect Lynn Hutchings (R-Cheyenne) joined Winters in arguing that the recently updated discrimination policy could be used to silence their viewpoints.

By putting the language into a policy, the Management Council had imposed a policy standard that the full Legislature had debated as proposed law and declined to enact, Steinmetz said.

Rothfuss expressed a different view of why the council was reviewing an internal policy it had already passed.

“This is a nondiscrimination and harassment policy and we’re reviewing it at the request of those that are really interested in maintaining their right to discriminate,” he said.  

Social conservatives and the Republican party leadership will continue to erase protections for LGBTQ people in Wyoming’s public institutions, Zwonitzer said. “It’s a concerted effort to remove [sexual orientation and gender identity] protections from every government institution in Wyoming,” he said. “Until someone stands up against it the dominoes will just keep falling.”

Some community colleges, city governments and the University of Wyoming include sexual orientation and gender identity language in their policies.

While Zwonitzer agreed with Duff that lawmakers and workers in the capitol would still be able to pursue discrimination complaints through state or federal law, he said the new language would make standards more vague. “Welcome to Wyoming, we’re back to the wild, wild West.”

“We hold our legislators to a standard but if they fall below that standard we say ‘oh well,’” he said. “Elected officials should be held to a higher standard than the general public.”