Based on the commentary from LGBT rights organizations, their biggest beef with the legislation is that it exempts religious organizations. In other words, they want to force churches which disapprove of same-sex marriages to solemnize the marriages anyway. They want to force churches and religious organizations to employ gay or transgender persons in clergy and other positions against the beliefs of their religious organization.
Another big complaint is that the legislation allows small business owners to discriminate. Indiana's civil rights law respecting employment discrimination applies only to employers with six or more employees. The same small employers which are exempt under the current law will be exempt under the proposed law. Additionally, it carves out an exception in public accommodations for employers with four or fewer employees to provide wedding-related services for same-sex couples. LGBT rights groups are also upset because the law will not permit enforcement actions against employers, schools and businesses compelling them to provide transgender-friendly restrooms.
LGBT rights groups are also upset that the state law would prohibit local governments from enacting civil rights ordinances that are more stringent than the state law. The bill also adds a provision allowing for the imposition of a $1,000 penalty against persons who file "frivolous" complaints. Just as an exercise, I would urge someone in the media to find ask Indianapolis EEO office how many complaints have been filed alleging discrimination on the basis of sexual orientation or gender identity since the City enacted its law 10 years ago. You would be shocked by how few complaints have been filed here or any other city in Indiana that has adopted a similar local ordinance.
Here's the Star's full summary of the proposed legislation:
- Housing: Most landlords and property owners could not refuse to sell or rent to someone because they are gay, lesbian, bisexual or transgender. The law would also apply to loans, appraisals, property showings and real estate marketing. As is currently the case with discrimination based on race, color, religion, sex, disability, familial status and national origin, violators could face a civil penalty of up to $50,000 for the first violation and $100,000 for the second violation.
- Employment: Most but not all employers would be prohibited from discriminating based on sexual orientation or gender identity. The protection applies to hiring, firing and other employment matters. State contractors and subcontractors would also be banned from discriminating unless they are affiliated with a religious institution. As is currently the case with discrimination against other protected classes, violators could be required to stop discriminatory practices and pay victims any lost wages. Public accommodation: Most but not all shops, restaurants and other establishments offering goods and services to the general public could not refuse to serve gay, lesbian, bisexual or transgender people. A business that violates the law would be required to halt its discriminatory practice.
- Marriage licenses: County clerks would be required to issue marriage licenses regardless of the couple's sexual orientation or gender identity. State and local governments would also be banned from denying or suspending licenses or permits of any kind based solely on a person's lawful expression or activity regarding marriage, sexual orientation, or gender identity. Protections for religious groups and people
- Religious groups: Religious organizations, such as churches, associations or religiously affiliated nonprofits, would be exempt from all parts of the civil rights law regarding sexual orientation and gender identity. So, too, would be religious leaders, such as priests, pastors or rabbis, when involved in activities of their religious organizations. One question likely to arise from this is whether that could be interpreted by religious schools and day cares to refuse enrollment to children of same-sex or transgender parents, or expel a child who identifies as gay or with a different gender.
- Marriage ceremonies: Religious leaders, such as priests, pastors and rabbis, would not be required to solemnize any marriage that goes against their beliefs. Religious organizations would not be required to provide services or facilities for the celebration of a marriage that goes against its beliefs.
- Wedding businesses: Any business with fewer than four employees would not have to provide any marriage services for a same-sex couple or transgender person. This would include renting a facility, baking a cake, or taking photographs for a wedding rehearsal, reception, ceremony or anniversary. It would also include providing marriage counseling.
- Public bathrooms: Schools, employers and businesses would be able to set their own policies on who can use which restrooms or locker rooms. This would mean they could decide whether transgender people could use bathroom facilities based on their preferred gender, or whether transgender people could be required to use those facilities based on their birth sex. Schools and employers could also set dress code policies based on sex, sexual orientation or gender identity. This could mean making accommodations for transgender people to dress and present themselves as they prefer, but it appears it could be interpreted to require men, women, gays, lesbians, bisexuals and transgender people to conform to certain ways of dressing. And the law would provide for the state attorney general to defend the policies of any government agency or public school board. Other things you should know about SB 100
Other things you should know about SB 100
- Definition of transgender and sexual orientation: Before filing a complaint, transgender people would be required to live as their preferred gender for a year or produce evidence of medical history, care, or treatment of their gender-related identity. People do not have to “prove” their sexual orientation in order to be protected from discrimination — and an action could still be found to be illegal discrimination if a false assumption is made about someone’s sexual orientation. The bill covers “actual or perceived bisexuality, heterosexuality, or homosexuality.”
- Frivolous complaints: The measure establishes a $1,000 penalty for “frivolous” discrimination complaints. The penalty also extends to complaints filed “intended to harm the subject of the complaint.” Any penalties imposed by the Indiana Civil Rights Commission would be sent to the state general fund.
- Supersedes local ordinances: The proposal prohibits local governments from enacting stricter non-discrimination ordinances. That would likely have an impact on local city and county non-discrimination ordinances, some of which include larger fines and fewer carve outs for religious objections than the proposed state law.