STATE OF INDIANA
HOUSE OF REPRESENTATIVES
THIRD FLOOR STATE HOUSE
INDIANAPOLIS, INDIANA 46204
Bruce Borders
7935 N State Road 59
Jasonville, IN 47438
Email: [email protected]
Statehouse: 1-800-382-9841
Website: www.in.gov/H45
___________________________________________
COMMITTEES:
Veterans Affairs & Public Safety: Vice Chair
Insurance
Local Government
January 4th, 2016
Greg Zoeller
Attorney General
Indiana Government Center South
302 W. Washington St., 5th Floor
Indianapolis, IN 46204
Dear Attorney General Zoeller,
I am writing to request an Advisory Opinion on certain provisions of Senator Holdman’s
Senate Bill 100 titled “Civil Rights” and whether these provisions are constitutional under the
Indiana and United States Constitutions and federal law.
1. Whether the term “gender identity” is unconstitutionally vague under the Indiana and
United States Constitutions?
The law protects against vague laws. These protections are provided in the First and
Fourteenth Amendments to the United States Constitution and in parallel state constitutional
provisions. Where “prohibitions are not clearly defined,” they are “void for vagueness” for
“trap[ping] the innocent by not providing fair warning.” Grayned v. City of Rockford, 408 U.S.
104, 108 (1972). Laws must “give the person of ordinary intelligence a reasonable opportunity to
know what is prohibited, so that he may act accordingly.” Id. Especially when a statute “interferes
with the right of free speech of association, a more stringent vagueness test should apply.” Hoffman
Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499(1982).
I have observed that the term “gender identity” seems to be difficult to define. In February
2014, Facebook announced that they added a customizable option of 50 terms to allow people to
identify their gender.1 The website later that month recognized 56 terms for” gender identity.”2
1
http://www.huffingtonpost.com/2014/02/13/Face book-gender_n_4782477.html.
2
http://www.dailynews.com/social-affairs/20140213/here-are-facebooks-56-new-genderidentity-options
1
Time Magazine, February 2014, defined many of these terms which include, “pangender,” one
who sees themselves as “a little bit of everything in the sexual catalog,” “cis” meaning “a person
born one sex and also identifies with the gender associated with that sex,” and “two-spirit” meaning
“someone who embodies both the spirits of a man and a woman.”3 In June 2014, the United
Kingdom’s Facebook recognized 71 gender options.4 The UK’s Daily Telegraph explained that
“[g]ender identities are complex and for many people, describing themselves as just a man or just
a woman has always been inadequate.” Id. “Gender identity” is so complex that starting in
February 2015 (when Facebook had 58 gender identity options), Facebook allowed individuals to
fill in the blank and add their own gender identity term.5 “Gender identity” is so difficulty to define
that individuals can make up their own term and definition for it for themselves. 6
Senate Bill 100 seems to throw in the towel by not attempting to define “gender identity”
at all. The purported definition of “gender identity” is contained in Section 5 as follows:
“Gender Identity” means a person’s gender-related identity, appearance, or behavior:
(1) whether or not that gender-related identity, appearance, or behavior is different
from that traditionally associated with the person’s physiology or assigned sex at
birth, and
(2) that can be shown by providing:
(A) medical history, care, or treatment of the gender-related identity
occurring in the period of twelve (12) months preceding the act or omission
that is the subject of a complaint under this chapter; or
(B) consistent and uniform assertion of the gender-related identity in the
period of twelve (12) months preceding the act or omission that is the
subject of a complaint under this chapter, if the assertion is sincerely held,
part of the individual’s core identity, and not being asserted for an improper
purpose.
Section 5.
A few things are apparent about this purported definition. First, it is not a definition at all,
but a list of related, but different, concepts. There is a definition of “gender identity” that is
3
http://techland.time.com/2014/02/14/a-comprehensive-guide-to-facebooks-new-optionsfor-gender-identity/
4
http://www.telegraph.co.uk/technology/facebook/10930654/Facebooks-71-genderoptions-come-to-UK-users.html.
5
http://www.theblaze.com/stories/2015/02/27/name-your-gender-facebook-adds-fill-inblank-to-its-gender-list-that-already-includes-options-like-two-spirit/.
Gay rights advocates candidly admit that, in this area, “no definition is absolute” and that “any
description . . . might fit 6 out of 10 people who use” it. http://techland.time.com/2014/02/14/acomprehensive-guide-to-facebooks-new-options-for-gender-identity/.
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2
available,7 but it is not used. Second, it is circular. “Gender identity” is defined as “genderrelated identity.” This part is meaningless. Third, “gender identity” is also defined as “genderrelated . . . appearance or behavior.” However, in the literature on this subject, “gender-related .
. . appearance or behavior” is what is called “gender expression,”8 which is a much different
concept than “gender identity.” By confusing these two concepts, the purported definition adds
additional confusion on what “gender identity” is. Fourth, the definition refers to “identity,
appearance, or behavior” that is “different from that traditionally associated with the person’s
physiology or assigned sex at birth.” However, gay rights advocates argue that sex-related
characteristics are just “socially constructed”9 and that assigning certain characteristics to man and
woman is “fundamentally flawed.” They believe that “connecting (gender descriptor) to specific
sexes renders them oppressive terms” that are “politically contextualized and constructed.”10 If
one accepts this critique, there are no “identity, appearance, or behavior” that is “associated with
the person’s physiology or assigned sex at birth.”
So none of this helps one to know if a person’s “gender identity” is different from his or
her biologic sex. The common understanding of “gender identity” further compounds the
problem. In the literature on the subject, “gender identity” is viewed as an individual’s “inner
sense of being and one’s own understanding of how one relates,”11 which “is not visible to
others.”12 “Gender identity” is thus often without any obvious outward manifestations, may not
be permanent, could change in a short period of time,13 is subjective, and, in some manifestations,
“Gender identity” is defined by the American Psychological Association as referring “to one’s
sense of oneself as male, female, or transgender. When one’s gender identity and biological sex
are not congruent, the individual may identify as transsexual or as another transgender category.”
http://www.apa.org/pi/lgbt/resources/guidelines.aspx (citations omitted).
7
“Gender expression” is also defined by the American Psychological Association as referring to
“the way in which a person acts to communicate gender within a given culture; for example, in
terms of clothing, communication patterns and interests. A person’s gender expression may or may
not be consistent with socially prescribed gender roles, and may or may not reflect his or her gender
identity.” Id.
8
9
https://www.genderspectrum.org/quick-links/understanding-gender/.
10
https://en.wikipedia.org/wiki/Gender_binary.
11
http://www.uua.org/lgbtq/identity.
12
http://www.igwg.org/igwg_media/Training/FG_SexOrientDefsMyths.pdf.
For instance, a person who is “bigender” can “experience both of those genders at the same time,
or might rotate between them, monthly or weekly or daily” and a person is “gender fluid” if the
person “experiences gender in different ways at different times, who flows through gender
identities.” Time, supra footnote 6.
13
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involves aspects of both sexes at the same time.14
If “gender identity” is a subjective state of mind that changes from day to day,15 then how
is the owner of a restaurant, for instance, to know that when a male seeks to enter a female
restroom, that his “gender identity” was female at the time. He could just be a Peeping Tom. Either
way, the restaurant owner risks liability if she guesses wrong. The male, with a “gender identity”
of a female, could claim discrimination under the Bill, if the owner bars access to the woman’s
restroom, or if the male is just a Peeping Tom, she could be sued by the women in the restroom
whose privacy was violated.16
Thus, I ask whether the term “gender identity” is “sufficiently defined” so that it does not
“trap the innocent by not providing fair warning” of its requirements.
2. Does the exception from the definition of “discriminatory practice” for maintenance of
separate restrooms, etc. based on sex violate federal law?
I am aware that the Bill currently provides that “it is not a discriminatory practice . . . to
maintain separate restrooms . . . based on sex.” Section 2. However, the Obama
Administration has recently forced schools to give transsexuals access to a girls’ locker room
claiming that baring a transsexual from a girls’ locker room violates the federal Civil Rights Act.17
And national gay rights advocates have claimed that an Indiana bill that would protect privacy in
public restrooms by ensuring that only people of the same sex use them is unlawful under federal
law.18
As a result, I ask is the exception permitting separate restrooms, etc. based on sex
unconstitutional under federal law?
14
http://emedicine.medscape.com/article/917990-overview.
The Bill’s requirement of “medical history” or “consistent and uniform assertion of the genderrelated identity” for a period of 12 months preceding the complaint of discrimination under the
Bill does not solve the problem. Many manifestations of “gender identity” are inherently “fluid”
or alternating between sexes so that a history of “fluidity” does not help the restaurant owner know
what sex the person is claiming at any given time.
15
16
The Bill currently exempts maintaining separate restrooms, etc. based on sex. Section 2.
However, there is no guarantee that, during the legislative process, this exception will survive and
it may be contrary to federal law. See Question 2. Thus, I give this example to illustrate the
problem with the phrase “gender identity,” absent the exception.
17
http://www.cnn.com/2015/11/03/us/illinois-school-district-transgender-ruling/.
18
http://www.southbendtribune.com/news/local/indiana-bill-targets-transgender-bathroomuse/article_500bb3da-ab29-11e5-9a30-fb9e6cb2f89a.html#.Vn3IjxqWm8c.mailto.
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3. Whether or not religious freedom protections in the Bill are adequate under the Indiana
and United States Constitutions?
Both the Indiana and United States Constitutions provide extensive protections to a
person’s religious beliefs and their free exercise.
The Indiana Constitution provides that:
All people shall be secured in the natural right to worship ALMIGHTY GOD, according
to the dictates of their own consciences.
Ind. Const. Art. I, § 2.
No law shall, in any case whatever, control the free exercise and enjoyment of religious
opinions, or interfere with the rights of conscience.
Ind. Const. Art. I, § 3.
No preference shall be given, by law, to any creed, religious society, or mode of worship;
and no person shall be compelled to attend, erect, or support any place of worship, or to
maintain any ministry, against his consent.
Ind. Const. Art. I, § 4.
“The religious liberty provisions of the Indiana Constitution were not intended merely to
mirror the federal First Amendment,” but rather “provide religious protections that exceed those
of the First Amendment.” City Chapel Evangelical Free Inc. v. City of South Bend ex rel. Dept. of
Redevelopment, 744 N.E.2d 443, 445-46 (Ind. 2001).
Further, the federal Constitution provides religious protections in the First Amendment
Free Exercise Clause and Establishment Clause. The Free Exercise Clause of the United States
Constitution provides that
Congress shall make no law . . . prohibiting the free exercise [of religion].
U.S. Const. amend. I.
“The Free Exercise Clause protects religious observers against unequal treatment,” in other
words, “the government . . . cannot in a selective manner impose burdens only on conduct
motivated by religious belief.” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S.
520, 542-43. A well established principle of the Free Exercise Clause is that the “government may
not enact laws that suppress religious belief or practice . . .” Id. at 523. “[T]he guarantee of the
Free Exercise Clause is ‘not limited to beliefs [that] are shared by all of the members of a religious
sect.’” Holt v. Hobbs, 574 U.S.____, 135 S.Ct. 853, 863 (2015) (quoting Thomas v. Review Bd. of
Ind. Employment Security Div., 450 U.S. 707, 715-16 (1981)). The First Amendment Free Exercise
Clause protects both religious beliefs and practices.
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The Establishment Clause of the United States Constitution provides that
Congress shall make no law respecting an establishment of a religion.
U.S. Const. amend. I.
The United States Supreme Court has created a three-part test to determine whether an
Establishment Clause violation has occurred: if a law does not serve a secular legislative purpose,
if a law advances or inhibits religion, or if a law fosters excessive entanglement with religion, it
violates the Establishment Clause. Lemon v. Kurtzmann, 403 U.S. 602, 612 (1971); see Kaufman
v. Pugh, 733 F.3d 692, 696 (7th Cir. 2013) (“the Establishment Clause may be violated even
without a substantial burden on religious practice if the government favors one religion over
another (or religion over nonreligion) without a legitimate secular reason for doing so.”).
Senate Bill 100 generally exempts “religious or religious affiliated organization[s],” which
includes churches, religious institutions, and nonprofit “controlled by or in conjunction with a
church.” Section 3. This definition includes other educational nonprofit organizations, which are
independent of a church but organized to encourage students to incorporate a religious point of
view in an academic setting. Id. This seems to include schools not affiliated with a particular
church, but which have a religious basis. Also exempted are an adoption agency, a nonprofit
school, and a nonprofit day care facility or service, but only if it is affiliated with a church. Id.
Finally, the Bill has special provisions exempting clergy and religious organizations from
performing or facilitating same-sex marriages, receptions, marriage counseling, and lists other
similar activities. Id.
As a result, except for educational nonprofit organizations, the specific protections for
religious belief and exercise apply only to the activities of a church and its clergy. Individual
citizens are not protected from being charged with a discriminatory practice when the government
is seeking to coerce the person to do something contrary to his or her religious beliefs.
As a result, does the Bill provide adequate protections for the free exercise of religion
guarantee under the Indiana and United States Constitutions?
I appreciate your advice on this matter.
Sincerely,
Bruce Borders
State Representative
House District 45
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