DC Human Rights Act and the Gay Community
Remarks by Mr. Howell (on behalf of GLAA) for the Celebration of International Human Rights Day, DC Commission on Human Rights, December 10, 2003
Good evening. I want to thank the Commission on Human Rights for sponsoring this panel discussion as a way of focusing public attention on the crucial importance of the DC Human Rights Act of 1977, which remains to this day as one of the strongest and most comprehensive civil rights laws in the country.
2003 marks the 30th anniversary of the enactment of Title 34, the immediate predecessor of the current law; in fact, the 1977 Act was a word-for-word, comma-for-comma reiteration of Title 34. 2003 also marks the 50th anniversary of the Supreme Court’s ruling in the famous Thompson’s Restaurant case, when the Court held that the Reconstruction-era laws banning racial discrimination in places of public accommodations in the District of Columbia -- the so-called “Lost Laws” -- were still valid even though they had not been enforced for decades.
The District’s gay and lesbian community has benefited enormously from our Human Rights Act, because it affords us protections from arbitrary discrimination that are not provided by federal law. In return, the District’s gay and lesbian community has served as a watchdog on behalf of all protected categories by advocating for vigorous enforcement of the law and for adequate budgets for the Office of Human Rights (OHR) .
This evening, I want to hit some of the highlights of the 30-year record of Human Rights Act enforcement and the role of the District’s gay and lesbian community, particularly my own organization, the Gay and Lesbian Activists Alliance of Washington (GLAA). I will have to abbreviate my remarks in the interests of time. But you can find the complete text of my remarks on our web site, www.glaa.org. Our web site is an indispensable on-line resource for anyone interested in the DC Human Rights Act and its history, as it includes links to GLAA’s letters, testimony, and other relevant document
The gay and lesbian community was present at the creation, so to speak. After what was originally known as the Gay Activists Alliance (GAA) was founded in April 1971, our first major victory was scored in May 1972 when we convinced the Board of Education, at the time the District’s only popularly-elected political body, to ban discrimination against gay and lesbian students, teachers, and public school staff. Soon afterwards, we became involved with an initiative originating with Lynn Schultz, Kirk White, and other staff of the Presidentially-appointed City Council to expand our local anti-discrimination law, which until that time had simply mirrored the federal civil rights statutes. Councilmembers Tedson Myers and Dr. Marjorie Parker were among the leaders who maneuvered the legislation to passage in October 1973. A month later, Mayor-Commissioner Walter Washington added his signature.
Title 34, as the new law would be called, not only banned discrimination on the basis of sexual orientation, but also on the basis of other categories not covered by federal law, such as marital status and personal appearance. At the same time, our law was strengthened by narrowing the so-called “business necessity” exclusion. Under this new law, businesses would have to prove that practicing non-discrimination might not just cost them money but would actually make it impossible to remain in business at all--a burden of proof that few, if any businesses, have ever been able to meet. Winning this battle against the Board of Trade was the single hardest struggle for GAA and the other members of the coalition fighting for passage of Title 34.
In early 1975, under the new home rule charter that allowed for direction election of our Mayor and Council, we in GAA lobbied Mayor Washington to appoint an openly gay man or woman to the Commission on Human Rights. After we submitted a list of six possible candidates, Mayor Washington appointed Dr. Franklin E. Kameny, the very Godfather of gay political activism both here and around the country -- the first time an openly gay person had been named to any official Board or Commission in the District of Columbia. But after this auspicious beginning, the gay community began to encounter problems that have repeatedly sprung up over the last three decades: (1) a persistent massive backlog in cases pending before OHR and the Commission on Human Rights; and (2) a scandalous attitude of indifference if not outright hostility towards the Human Rights Act by the District government itself.
A serious backlog of cases at OHR and the Commission on Human Rights developed very quickly after passage of Title 34, a problem we at GAA blamed partly on an inadequate budget and partly on the administrative incompetence of Mayor Washington’s OHR Director, James Baldwin. Mr. Baldwin’s commitment to vigorous enforcement of Title 34 was further called into question by his mishandling of a complaint filed against the local chapter of the Big Brothers organization for barring gay employees and would-be gay Big Brothers. To make a long story short, Mr. Baldwin agreed with Big Brothers that they were exempt from Title 34. Between the ever-lengthening of the backlog of discrimination complaints and Mr. Baldwin’s siding with the homophobes at Big Brothers, the gay and lesbian community was very eager to install new leadership at OHR by electing a new Mayor in the 1978 elections.
Ironically, Title 34 was being invoked repeatedly within the gay community itself, chiefly to combat the blatant racism of several gay bars. These bars tried to limit or exclude black patrons, chiefly by demanding more IDs as proof of age for black customers than for whites. Complaints of racial discrimination were filed against such superbars as Lost & Found and the Grand Central; I myself helped to document the racist carding practices at the latter.
Sometimes these complaints led to satisfactory settlements, sometimes they led to the closure of the offending businesses, but sometimes the complaints had little impact. I spoke just a few days ago with one of the first plaintiffs against the L&F, who still remembers how badly OHR handled his case during the Walter Washington era and how much better things got once Marion Barry was installed as Mayor. The carding problem nevertheless persisted for years until the Council, at the urging of a broad coalition of gay and lesbian community groups, enacted legislation around 1984 forbidding any licensed ABC establishment from requiring more than two IDs as proof of age. The remaining recalcitrant businesses finally got the message and cleaned up their act once and for all.
Meanwhile, Title 34 had been challenged in court within a few years of its enactment on the grounds that it was a mere police regulation enacted by an appointed Council that lacked the legal powers to expand and strengthen the District’s original anti-discrimination law in the pre-home rule regime. The solution was an exact re-enactment of Title 34 by the new Council, whose legislative powers under the home rule charter were perfectly clear.
Unfortunately, the move to re-enact Title 34, led by Councilmember David Clarke, coincided with the 1977 anti-gay backlash stirred up by the notorious Anita Bryant and her viciously homophobic referendum in Dade County, Florida. Councilmember Douglas Moore, Jr. decided to exploit homophobic prejudice for his own political gain by seeking to exclude gay people from the protections of the District’s civil rights statute. Fortunately, his demagoguery found little support on the Council, and Title 34 was in fact re-enacted as what we now know as the Human Rights Act of 1977.
The 1978 elections turned into a de facto referendum on the future of gay rights in the District of Columbia. One of the three leading Mayoral candidates was Councilmember Marion Barry, who had repeatedly championed gay-related causes, while one of the two leading candidates for Council Chairman was the infamous Doug Moore, running against a very pro-gay Councilmember Arrington Dixon. The triumphs of both Barry and Dixon were as complete as they were unexpected, and decisively shattered homophobia as a viable political force in our city.
In 1979, the Council passed and Mayor Barry signed legislation that GAA and others had sought since the Dade County referendum to bar any initiative or referendum that would restrict the protections of the Human Rights Act of 1977. We believed then, as now, that subjecting minority rights to majority vote was a gross perversion of the democratic process. All of us in this room who come from minority communities -- and which of us do not? -- continue to benefit from that provision, which remains unique in the United States.
Enforcement of the Human Rights Act was clearly a much higher priority under Marion Barry than it had been under Walter Washington, thanks to a succession of strong and committed OHR Directors. Although the backlog never got as low as we would have wanted, we weren’t hearing nearly so often as before about unconscionable delays from gay men and women filing complaints at OHR. Accordingly, the backlog ceased to be our constant preoccupation and had pretty much dropped off our radar screen by the end of the 1980s.
Two gay rights cases commanded tremendous attention from both the gay and lesbian community and the broader public during the 1980s. One was the continued agitation over the local Big Brothers’ notoriously homophobic practices. In 1989, matters came to a head when OHR reversed its earlier decision and ruled that Big Brothers was indeed subject to the Human Rights Act. To our enormous relief, the Board of Directors of Big Brothers threw in the towel at this point and agreed to allow mothers or guardians of Little Brothers to decide whether to accept a gay volunteer Big Brother. That common-sense policy is now in effect in most Big Brothers and Big Sisters chapters around the country, much to the horror of professional homophobes who have now turned their wrath against Big Brothers.
The other high-profile gay rights case of the 1980s was not filed with OHR but in the courts, as Georgetown University was sued for refusing to recognize the campus gay and lesbian organizations. This one dragged out for the better part of the decade, until a lower court finally found for the plaintiffs. This eventually induced the university to settle with the gay and lesbian students by recognizing their groups, a settlement that remains in effect to this day.
This happy ending was, however, tarnished by the typically mindless intervention of Congress, which enacted the so-called Armstrong Amendment. This arbitrary action weakens our Human Rights Act by exempting religiously-affiliated educational institutions from having to recognize gay and lesbian student organizations. Georgetown University did not request this amendment, publicly disassociated itself from it, and to its credit has never tried to invoke it. For that matter, neither has any other local religiously-affiliated school or university. Though it remains on the books as an insult both to home rule and to civil rights, the Armstrong Amendment is for all intents and purposes a dead-letter law.
For all of its worthy contributions to better enforcement of the Human Rights Act, the Barry Administration made one move in the late 1980s which proved to be disastrous. In 1989, it merged the Office of Human Rights with the Minority Business Development Commission into a new Department. GLAA had no objections at the time, and the Department’s first Director, Loretta Caldwell, seemed to be as dedicated to civil rights as anyone else we had encountered in the Barry Administration.
Unfortunately, the Department took a decided turn for the worse under the regime of Mayor Sharon Pratt/Dixon/Kelly in the early 1990s, and I regret to admit that we at GLAA were asleep at the wheel while it happened. Throughout the Pratt/Dixon/Kelly years, the staff of the Minority Business Development Commission was greatly expanded at the expense of staffing levels in OHR. Even though OHR had a much bigger staff than the Commission’s when the Department was created, this situation was reversed by the mid-1990s. The Department was never headed by anyone with a background in civil rights enforcement, but instead was led by a series of political hacks whose overriding priority was to steer DC government contracts into the hands of businesses on friendly political and financial terms with the Mayoral and Council incumbents.
As a result of this deliberate and calculated abuse, the backlog of cases at OHR exploded. We at GLAA received a rude awakening as to the true state of affairs when the Washington Post reported in late 1994 that OHR had only recently assigned an investigator for the complaint filed two and a half years earlier against the local Boy Scouts for excluding gays as volunteers and as Scouts -- a case obviously of enormous interest to us. After discovering that the number of investigators and other staff at OHR had shrunk to almost the vanishing point since the Department was created, we went on a crusade both to boost OHR’s budget and staff and to liberate it as an independent agency once more. Unfortunately, the mid-1990s was a period of enormous political and financial turmoil in the District, and neither the fourth-term Barry Administration nor the Council were receptive to our pleas.
The situation at OHR has improved enormously over the past five years. In 1999, Councilmember Kathy Patterson cleverly used the budget process to reestablish OHR’s independence while also boosting OHR’s budget. Mayor Anthony Williams has made three selections of Directors for OHR -- Charles Holman III, Nadine Wilburn, and the incumbent, Kenneth Saunders -- all of whom have demonstrated an outstanding commitment to the cause of Human Rights Act enforcement. The present Chair of the Council’s Subcommittee on Human Rights, Latino Affairs and Property Management, Ward 1’s Jim Graham, has helped immeasurably both by aggressive, no-nonsense oversight of OHR and by advocating for adequate budget and staffing for the Office.
Mayor Williams further contributed to the cause by issuing a Mayoral Order in August 2000 mandating that all District government nondiscrimination policy statements would list all the categories protected under the DC Human Rights Act of 1977, and not just the federally protected categories, as had been done too often. Ms. Wilburn did an especially energetic job during her one-year term as Interim OHR Director from June 2002 to June 2003 to ensure that all District government departments and agencies were in compliance with this Mayoral Order. Councilmember Graham’s oversight hearings last year on such compliance further helped to convince the District’s notoriously recalcitrant bureaucracy that they had better take the Mayor’s Order and our Human Rights Act seriously.
Thanks to several years of improved budgets and to stronger administrative leadership, considerable progress has been made in reducing OHR’s case backlog. Much remains to be done, however, before past cases are thoroughly processed and before anyone filing a new complaint can be confident that OHR will render a decision as speedily as they have a right to expect.
Unfortunately, there have been a number of instances over the last decade when the District government itself advanced interpretations of the Human Rights Act that we found bizarre and counter-productive. The most notorious example was the gross mishandling of the Tyra Hunter case both by the Fire/EMS Department and the Corporation Counsel’s office. You will recall that Tyra Hunter was a transgendered woman seriously injured in an auto accident in August 1995. The Fire/EMS employee who first arrived on the scene abruptly ceased treatment and uttered some grotesquely insensitive comments when he discovered that Tyra had male sex organs. After Ms. Hunter subsequently died at DC General because of gross medical malpractice, the Fire/EMS Department conducted nothing more than a cursory internal investigation and refused to discipline anyone.
When Margie Hunter, Tyra’s mother, sued the District Government both for medical malpractice and for violating her child’s rights under the Human Rights Act, the Office of the Corporation Counsel launched a prolonged campaign of judicial attrition against her. In the process OCC argued for some incredibly narrow and crabbed interpretations of the law.
For example, they told the court that the Fire/EMS Department was not covered by the public accommodations section of the law, which supposedly only applied to physical buildings, “bricks & mortar,” and not to outside places like streets and sidewalks. Luckily, GLAA persuaded then-Corporation Counsel John Ferren to officially repudiate this argument.
OCC also argued that nobody could sue the District government in court for violating the Human Rights Act without first filing a complaint with OHR. The fact that every judge who had heard such a preposterous argument had thrown it out in previous cases did not stop the Corporation Counsel’s office from hauling it out once more. Since they refused to budge, GLAA and the ACLU asked the Council to amend the law to spell out explicitly that ordinary citizens who feel victimized by discrimination from the District government can get their day in court without first having to go through OHR. This and many other equally worthy suggestions, such as including harassment and sexual harassment as prohibited acts of discrimination, were incorporated into the Human Rights Act Amendment Act of 2002, under the guidance of Councilmember Graham.
Another example of trying to undercut the Human Rights Act was provided, once again, by the Fire/EMS Department under the gone-but-not-lamented Chief Ronnie Few, who tried to impose his own paramilitary notions of good grooming on Department employees--even though a court had thrown out a virtually identical grooming policy years before as a blatant violation of the Human Rights Act’s ban on discrimination based on personal appearance. Firefighters fighting Few’s folly on religious grounds won a federal court victory in short order, and we expect a new grooming policy in full harmony with the Human Rights Act will soon be implemented. (Our community has a particular interest in enforcing the “personal appearance” protections of the Human Rights Act, because that language is the basis for the comprehensive protection available to the District’s transgendered residents.)
GLAA believes that trouble might be more easily avoided if District agencies, including the Corporation Counsel’s office, would routinely check with the Director of OHR before they publicly lock themselves into dubious interpretations of the Human Rights Act. That has never happened before, so far as I know. When I suggested such a course to the new Corporation Counsel, Bob Spagnoletti, at a recent meeting of the Mayor’s Gay BLT Advisory Committee, he agreed that that would be a prudent practice. If he and the Mayor ensure this new policy is followed, we all have reason for optimism.
Before concluding, I want to appeal to the various groups that are represented on tonight’s panel to start paying greater attention to enforcement of our landmark Human Rights Act. We at GLAA have learned our lesson: We cannot afford to relax our vigilance. Since awakening from our slumbers in 1994, we have testified numerous times before the City Council hearings on OHR budget and oversight. We have met many times with OHR Directors, and have testified at each confirmation hearing for new Directors. We have lobbied for changes in the law when appropriate. We have made enforcement of the Human Rights Act a very public issue in Council and Mayoral elections. Recognizing our expertise and record of service, the Administration’s Office of Personnel invited our representatives to participate in the official interviews with finalists for the OHR Director’s position earlier this year.
There is no reason why we at GLAA have to be alone when we testify and lobby. Every group in this room should be doing likewise to serve the interests of your own communities. For starters, Mr. Graham’s Subcommittee will be holding its annual oversight hearings for OHR this coming February, followed by FY 2005 budget hearings in March. Ladies and Gentlemen, Be There Or Be Square.