First Draft of Anti-Discrimination Law Aims to Secure LGBT Rights

Lower Merion took a step this week toward being the first township in Montgomery County to specifically prohibit  discrimination against people who are lesbian, gay, bisexual or transgendered (LGBT).

A draft ordinance completed by township staff will be released for public review sometime on Friday, Sept. 10 and discussed by the Board of Commissioners in a public meeting on Wednesday, Sept. 14.

Twenty-one states and Washington D.C. have laws against discrimination based on sexual preference and gender identity, but Pennsylvania does not, according to Jason Landau Goodman, organizer of local advocacy group, Equality Lower Merion.

"Currently, you could be fired, not hired or kicked out of your home or residence, just because you are LGBT," said Goodman, a University of Pennsylvania student and Bala Cynwyd resident. Goodman, along with his supporters, have been at the forefront of the push for Lower Merion to join the 17  other municipalities in Pennsylvania to have drafted anti-discrimination laws regarding to sexual orientation, gender identity and gender expression.

The potential details of the new law were the topic of discussion at the Tuesday, Sept. 7 meeting of Equality Lower Merion at the Lower Merion Academy in Bala Cynwyd.

Ward 12 Commissioner Brian Gordon, the sole commissioner in attendance at the meeting, told the group, "It's incredible you've gotten this far, this fast." Most of the meeting was spent discussing how the draft ordinance would likely operate.

How Enforcement Would Work

Early indications are that the township will create a three- to five-person, volunteer-based "Human Relations Commission" to hear and act on discrimination complaints.

The commission would act as the enforcement mechanism of a strictly defined anti-discrimination ordinance preventing prejudiced treatment in the areas of employment, public accommodations (loans, offers of goods or services, etc.) and commercial or housing accommodations (excluding personal residences offered for rent) on the basis of sexual orientation or self-perceived gender identity and expression.

The ordinance would include an exception for religious organizations not affiliated with the government.

Once the commission was established, individuals or groups could file discrimination complaints to the township, which would be passed on to the human relations commission. The commission would then require a response from the accused party and give both parties the option of seeking private, voluntary mediation over the issue.

If voluntary mediation is rejected, the ordinance would give the aggrieved party the ability to take the matter to court as a violation of local law.

Under the expected draft ordinance, the human relations commission would also have a set of "expanded procedures" that they could opt to use, giving the commission subpoena power to use for a fact-finding investigation, followed by an attempt at conciliation through persuasion, or a public hearing as a last resort.

Penalties

The commission could order a cease and desist statement if they find that unlawful discrimination is occurring, but they would not have the ability to award attorney fees or a civil penalty in the likely first draft of the ordinance, according to Gordon.

This is in contrast to other local ordinances passed by other municipalities in the state. Allentown, which passed a similar ordinance in 2002, allows wronged parties to recoup attorney fees and can hand out civil penalties up to $10,000 for first time offenders. The city of York allows for their human relations commission to order affirmative action steps to reverse the discriminatory actions, as well as award attorney fees and unspecified compensatory or punitive damages.

Other municipalities, including Swarthmore and Reading, crafted ordinances to follow guidelines set under Pennsylvania's Human Relations Act, which allows for the state human relations commission (which currently does not hear sexual orientation or gender identity cases) to award attorney fees to the wronged party, but does not allow for punitive damages.

The draft ordinance is expected to include provisions for a penalty between $100 and $1,000 for parties who interfere or refuse to participate in the procedures outlined in the ordinance.

How Much Would it Cost?

While the human relations commission would be made up solely of volunteers, cases that reached the public hearing phase would require the presence of the Township Solicitor. Since the attorney is paid by the township for his time, the program could come with some cost.

"The goal is to have the strongest possible, most efficient ordinance you can have, that is not going to cost a lost of money," Gordon said. "If you did get a slew of cases, you don't want to set up procedures that are going to be a draw on township resources." The township commissioner also said the potential attorney fees incurred by the township to adjudicate the cases would be well worth the added rights protections.

"Rights cost money to enforce," Gordon said, using recording of deeds and zoning enforcement as examples of the cost of property rights. "If you say I'm in favor of the rights of the LGBT, but I'm not going spend any money on it, you can't have it both ways."

Gordon said he expects the debate over the new ordinance to center primarily on the cost, although he said that he expects most of the commissioners to be supportive of the law. The commissioners voted 14-0 in July to instruct township staff to create the draft ordinance for review.

Next Steps

The Board of Commissioners will discuss the draft ordinance at the Administrators and Human Relations Committee meeting Wednesday, Sept. 15 at 6:15 p.m. in the Township Administrative Building's second floor conference room. The meeting is open to the public.

Gordon and the members of Equality Lower Merion agreed that while the initial proposal is a big step toward accomplishing their goal, they believe there is room for improvement in the expected draft.

Among other things, the group suggested making the expanded procedures mandatory, rather than optional, and pushing for the ability to grant attorney fees and potentially a civil penalty or fine.