Legislative Happenings - 02/02/18
Five Bills Impacting the LGBT Community
As we are about to complete week 2 of the legislative session, it was a challenge keeping up with the legislative bills going through the Business and Labor Committee and a couple others of interest. In just two weeks, I have read through 41 bills--including SB138 (Gender Change Amendments) and SB86 (Victim Targeting Penalty Enhancements), which I added to my watch list; eight legislative committee meetings, six hours in meetings with the Women's State Legislative Council, and a couple hours total in casual conversation with people I meet on the hill, including legislators, organization directors, and the ex-Fire Marshall of Midvale City. A couple of these bills ran over 3,000 lines in length, requiring several hours of reading.
Five Bills Impacting the LGBT Community
Considering where we were about four years ago, when legislators were openly engaging in micro-aggressions that targeted the transgender community, and refused to hear an LGBT Equality bill, going so far as to support funding for a fight against same sex marriage all the way to the Supreme Court, these bills show that the efforts of the LGBTQ+ community to build solid relationships with our legislators is starting to move them toward helping us overcome hurdles. On the other hand, a couple of the bills demonstrate that while they are not outright targeting the LGBTQ+ community, they do have unintended consequences, showing that our advocacy and education work is far from complete. So here are the five bills that have crossed my path that have an impact on this particular community:
SB54 (Marriage and Premarital Counseling and Education Amendments, sponsored by Senator Allen M Christensen). This bill began its life last year with the objective of raising funds to educate people on the importance of premarital counseling. Pushed by the Utah Marriage Commission, citing studies in which states that have a higher support of premarital counseling see a lower divorce rate, they claimed that this bill would save the state millions of dollars in fees processing divorce.That original bill had some serious issues, including a religious exemption for the content of the counseling, retraction of the confidentiality of a premarital counseling session, allowing elected officials to sign off on premarital counseling, and not specifying a time for a rebate to be processed for a new $20 imposed fee if premarital counseling was performed at least two weeks and not more than one year to obtaining the license. All of these features except the last were addressed by the introduction of this year's bill, which now included premarital education as an alternative and allowed the spouses to obtain the education separately. An free online class was also made available. Opponents to this bill pointed out the imposed fee as the state trying to mandate their lives, and it's hard to imagine in this day and age that it would be easy to find premarital counseling at the same quality and price that addresses the unique needs of same-sex marriage and polyamorous relationships as well as that of opposite-cisgendered-monogamous relationships. An online course is certainly not the equivalent to a couple in a counseling session as many in the LGBTQ+ community can attest . So before this bill was heard in committee, the bill sponsor came up with an alternative to the fee portion of the bill. Instead of a flat fee, the determination of being able to charge the fee was made to only apply to counties that used an online marriage application and decided to impose the fee to cover the expense. The only county in the state to do so currently is Utah county. The bill sponsor also added a five year sunset for automatic review. It was also noted that even with the added fee, Utah still has one of the lowest costs for marriage applications when compared with surrounding states. Perhaps in five years, we'll have public accommodations protections statewide, as well as affordable opportunities for premarital counseling and education for transgender, gay, bigender, lesbian, queer, and polyamorous communities. One can only hope. Meanwhile, many in our community will probably just skip the education and pay the fee.
SB86 (Victim Targeting Penalty Enhancements, sponsored by Senator Daniel W Thatcher): When Equality Utah was looking for who would sponsor a bill to add teeth to Utah's hate crimes legislation to make it enforceable, Republican Senator Dan Thatcher, who had sponsored a state application that you can download to your mobile device (Safe Utah) if you felt your were being bullied, essentially raised his hand and said, I'll take it. And take it he did. With other people in his party complaining about being prosecuted for hate crimes, carve-outs, fourteenth amendment violations, and a solution in search of a problem, Senator Thatcher found a way to address each of those arguments. When the current hate crimes legislation was created, it failed to enumerate what classes of targeting would be a hate crime, and what the penalty for the hate crime should actually be. As most liberals know, hate crimes are a form of social terrorism meant to inspire fear in everyone who matches a certain attribute. What the current law attempts to do is to specify something is a hate crime if it is done with the intent to prevent people from exercising their constitutional right. When Senator Thatcher started researching this bill, he found that even though there have been a number of hate crimes performed in Utah, justices had the issue of proving the intent to deny a constitutional right, let alone who exactly the law protected.
I first became aware that Senator Thatcher was running this bill when it was presented to the Women's State Legislative Council on Wednesday, January 31st. Senator Thatcher described the elements of his bill as follows: (1) All the protected classes are enumerated, including gender identity and sexual orientation, because this is what justices look for in application; (2) Before someone can be convicted of a hate crime, they must first be convicted of a crime; (3) If convicted of a hate crime, all misdemeanors and felonies are elevated one level in maximum sentencing, with the exception of sexual crimes (because they already have a minimum mandatory sentence). He related that whenever the state was dealing with a hate crime, due to the ineffectual aspect of Utah's laws on the manner, the federal government would step in and prosecute (usually successfully) on terrorism charges. What could have been a 1 year addition to a sentence in state prison becomes instead a 15 year sentence in federal prison. On my way to a committee hearing after the WSLC meeting, I noticed Senator Thatcher and wanted to shake his hand and say thank you. He interrupted his conversation, stunning me with, "I want to shake this woman's hand," and introduced me to fellow legislators he was in the process of winning over. It was a great experience to stand by the senator and watch him win votes.
SB138 (Gender Change Amendments, sponsored by Senator Todd Weiler): It was a welcome surprise to see this come across my FaceBook feed. X96 Radio from Hell's favorite conservative legislator is really going all out to support the transgender community this year. I don't have the back story yet to determine why Senator Weiler decided to run this bill, but it feels awesome to know that we have him for an ally. Partially in response to the fact that a couple of wonderful friends of mine are having to go all the way to the Utah Supreme Court to have their gender marker changed is a pretty expensive process. In the Salt Lake County region, the simple process of asking for a gender marker change is pretty much automatic, but as you move into the more rural parts of the state, you start to have justices who deny gender marker changes with the comments that the state code does not support the change. In reality, the current law doesn't address gender marker changes at all, unless you've had gender confirmation surgery or you present a federal document like a passport with your preferred gender marker. Senator Weiler's bill is a rather simple one: it simply adds legislation that is identical to that of a court-ordered name change, and specifies that you can have both a gender-marker change and a name change done via the same order.
HB30 (Utah Antidiscrimination Act Amendments, sponsored by Representative James A Dunnigan): Anytime someone touches this act, any marginalized group that has been subject to discrimination needs to take notice. This bill was the result of a state audit of the Utah Labor Commission Antidiscrimination and Labor Division. The auditor's report noted that the state of Utah was finding employer fault in on average significantly fewer cases than federal agencies and other states. The auditor's noted that the division had high turnover in investigators, lacked training, and was expected to do hearing's in conjunction with investigative proceedings. Most of the issues were procedural, and action plans implemented within the division. This bill streamlines the process so that when a complaint is filed, the first action is to see if the parties involved can come to a mediated solution. If this doesn't work out, then an investigation is conducted to see if the employer is at fault. If neither party accepts the findings of the investigation, a public evidentiary hearing can be requested, in which the division has subpoena powers to produce evidence and documentation, and then make a ruling in the case.
HB39 (Department of Insurance Amendments, sponsored by Representative James A Dunnigan): Representative Dunnigan refers to this bill as his "annual insurance cleanup" bill, and weighing in at over 3,000 lines long, it also probably qualifies for a novella. It literally took me over 3 hours to read over this bill, and while there is a lot of clarification, and administrative rules for the division involved in this bill it also does several things. The item that leaps out when I read the bill is a one word change that can have a huge impact. Buried deep within the bill, is the assertion that if an insurance determination of coverage is appealed, instead of it being the insurance provider as it is now, it will be the insurance commission that gets to select the mediator that will settle the dispute. This is huge! In 2011, when I challenged SelectHealth for partial coverage of GCS, the insurance company used this clause to refer my case to a "medical director," who they felt confident would find any reason to deny a claim. Sure enough, the medical director wrote the words, "cutting off a perfectly good," and then, drawing a line through what they wrote, referred to an international diagnosis, and said that my "gender dysphoria" was not covered per the policy, end of story. This has been a regular practice that insurance companies have notoriously used to avoid actually examining the legitimacy of their policies. While ultimately, I believe that a decision of medical necessity should be determined between a patient and their physician, having the insurance commission select the mediator of medical necessity is certainly a step in the right direction, by taking it out of the insurance provider's hands. This bill, on the other hand, also wants to make it a policy that the state, and not the federal government determines how to use Medicare dollars, unless of course, the state has to pay for not using the money according to the guideline. The problem here is that the federal government is more apt to make more cross-cutting fair accommodations that apply across the country, and not be bound up in moral or religious interpretations of what services to provide. In addition a number of other things this bill allows an insurer to terminate coverage of a spouse of an insured under an accident and health insurance policy in the event of legal separation, prohibits an insured from charging any additional amount for electing to extend group coverage, amends provisions related to the effect of an insurer's insolvency, clarifies the process by which the state designates the essential health benefits for the state, revokes the extension of CORBA, and revokes the Small Group Insurance Provider market.
That about wraps it up for this week in legislation. I look forward to our next update, where maybe we'll start diving into some of the business impacting bills.
See you out there,
Sophia Hawes-Tingey is the Legislative Liaison for the Utah Gay and Lesbian Chamber of Commerce, the Co-Chair of the Business and Labor Committee of the Women’s State Legislative Council of Utah, a Member of the Board of Directors for the Transgender Inclusion Project and Utah Stonewall Democrats, the Vice Chair of the Community Council of Midvale, and co-founder of People Empowered, LLC. You can visit Sophia’s webpage at http://www.sophiahawes.com or follow her on Facebook and Twitter.