Bill barring gender identity, expression discrimination in the workplace heads to governor

HONOLULU—A bill that would explicitly bar discrimination on the basis of gender identiy or expression in employment in Hawaii now awaits Gov. Neil Abercrombie’s signature.

The State House of Representatives passed House Bill 546, SD1, today for its final reading in conference.

To see House Bill 546, click here

Under the bill, “gender identity or expression” includes a person’s actual or perceived gender, as well as a person’s gender identity, gender-related self-image, gender-related appearance, or gender-related expression.

Four representatives, all Republicans, voted against the civil rights legislation—Rep. George Fontaine (R), Rep. Aaron Ling Johanson (R), Gil Riviere (R), and Rep. Gene Ward (R).

The State Senate had passed the bill after amending the House’s original version last week, with two “no” votes coming from Sen. Mike Gabbard (D) and Sen. Sam Slom (R).

The legislation received support from the Hawaii Civil Rights Commission, Hawaii State Teachers Association, Hawaii Government Employees Association, Hawaii State AFL-CIO, ILWU Local 142, Equality Hawaii, American Civil Liberties Union of Hawaii, Americans for Democratic Action Hawaii, Planned Parenthood of Hawaii, Screen Actors Guild Hawaii Branch, Honolulu Pride, and numerous individuals.

Equality Hawaii said in supporting testimony: “A cornerstone of this nation has been the belief that if you work hard and apply yourself, you can achieve any anything. No dream is impossible. But this is not true for many individuals who do not ‘fit’ into rigid stereotypes of what is ‘masculine’ and what is ‘feminine.’ Or for those whose soul does not match their biological gender. Too many times, we have witnessed or heard horrible stories of perfectly capable, able-bodied men refused or denied a job because they were ‘too feminine.’ Or talented, productive women denied a promotion because she was ‘too butch.’”

According to the 2009 National Transgender Discrimination Survey, transgender individuals experience unemployment and poverty at twice the rate of the general population—97 percent of the survey’s respondents reported experiencing harassment or mistreatment while at work. 

The need for legislation protecting against gender identity or expression discrimination was highlighted in 2002 by the Hawaii Civil Rights Commission, which ruled that interpreted gender identity or expression is included within the category of “sex” that is subject to anti-discrimination laws.

Some Hawaii business owners were concerned about how these new anti-discrimination laws would affect daily routines.

The Chamber of Commerce of Hawaii, which did not oppose the measure, requested additions to the bill:

* Employers should be able to apply gender-based grooming standards on employees. The employee should have to adhere to either male or female dress code, grooming, and daily habits.

* The employee in question should be held to only one gender and not change back and forth on a day-to-day basis. There should be consistency in the appearance of the employee. For example, if a male pre-school teacher were to dress up as a female one day and not the next, how does that impact the students and how do they address the teacher?

* Bathroom Usage should be clearly identified and adhered to, based on the gender of the grooming standard applicable to the employee. The employer may choose which grooming standard to adhere to if there is any question.

The Chamber of Commerce of Hawaii’s requests did not make it into the draft of House Bill 546 sent to the governor.

Lawmakers also received testimony from the Hawaii Catholic Conference and the Hawaii Family Forum requesting an exemption to the discrimination law for religious institutions.

The Senate Committee on Judiciary and Labor, however, said existing laws already protect a religious organization’s authority to evaluate whether a prospective employee will “promote the religious principles for which the organization is established or maintained.”

Hawaii Revised Statues section 378-3(5) states: “Nothing in [part I of chapter 378] shall be deemed to ... [p]rohibit or prevent any religious or denominational institution or organization, or any organization operated for charitable or educational purposes, that is operated, supervised, or controlled by or in connection with a religious organization, from giving preference to individuals of the same religion or denomination or from making a selection calculated to promote the religious principles for which the organization is established or maintained.” 

Those in support of House Bill 546 said the legislation would grant protections long sought by Hawaii residents.

“All of our students and graduates entering the workforce should have equal access to employment opportunities, regardless of their gender expression or identity,” Hawaii Board of Education (BOE) member Kim Coco Iwamoto said in supporting testimony.

Iwamoto pointed to BOE Policy #4211, an anti-discrimination policy that includes “gender identity and expression” among the list of protected classification states, which reads: “A student shall not be excluded from participation in, be denied the benefits of, or otherwise be subjected to ... discrimination under any program, services, or activity of the Department of Education.”

“Our students’ access to equal opportunities should not stop at the schoolyard gates,” Iwamoto said.