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This section covers the basic structure of a civil rights policy. The next section reviews some important features of civil rights policies. You begin by finding out what kind of a policy the board has the authority to adopt and what kinds of policies it has already. Many types of laws and policies are mentioned, and model policies for each type are in "Sample Language for Laws and Policies."
Your basic structure options depend on whether the board already has some type of civil rights policy or policies.
If your board has a civil rights policy, you can
- "drop in" -- simply add definitions of sexual orientation and gender identity to the policy and drop the phrases "sexual orientation" and "gender identity" in to the list or lists of groups whom the policy protects
- "piggy back" -- adopt a short policy which makes the existing policy apply to discrimination based on sexual orientation and gender identity
- adopt a new "free standing" policy for sexual orientation and gender identity discrimination and any other categories you may be covering in your campaign.
The "drop in" option is the one people use most. It neatly creates parity -- the same rights, the same policy. It is also very simple to write.
The drawback to the "drop in" is that if the existing policy is detailed, your proposal will be long. A short proposal is a huge advantage when you are trying to persuade people to support it. It is easy to show them just what it does, and just what it says. You can keep a "drop-in" short be referring to the parts of the policy to which sexual orientation and gender identity will be added instead of reproducing the whole thing. But its hard to make too much sense of that in a hearing or a lobbying visit.
The "piggy back" has the same effect as the "drop in." But a "piggy back" does it through one or two short paragraphs that say directly that the new policy will ban sexual orientation and gender identity discrimination in the same way existing policies cover other types. If you want to use your proposal in the campaign, either with board members or the public, a "piggy back" is much more likely to be useful than a "drop in" if the existing policy is longer than a paragraph or two.
If you are trying to improve the existing policy as well as add sexual orientation and gender identity to it, the "piggy back" won't help much, because you'll have to show anyone the entire existing policy to explain it anyway.
Most of the time, the "free standing" approach has little to recommend it. It will generate a long policy if the existing policy is long, and it won't show the parity.
However, occasionally, groups covered by existing policies do not want sexual orientation and gender identity added to them. Typically, they say they are afraid that whoever enforces the policy will weaken it in instances of sexual orientation and gender identity discrimination, and they don't want that to damage the policy for other. Obnoxious as this argument is, sometimes you need to accommodate it to get critical endorsements. If you do use the "free standing" option, you must decide whether to duplicate the existing policy, or adopt a better one.
A better policy is possible because, while parity should typically be your goal when there is an existing policy, other groups are unlikely to complain about differences in your proposal if they've forced you to propose a separate policy. On the other hand, if your proposal isn't a duplicate you loose the sometimes powerful "same rights, same policy" appeal, and your opponents may have an easier time forcing you to accept something worse.
Finally, no matter which structure you adopt, if your board has more than one existing civil rights policy, you need to decide if your goal will be to add sexual orientation and gender identity to all of them or just some. Keep two things in mind as you decide. First, be thoughtful. It may not make sense to add sexual orientation and gender identity to some policies (a policy, for example, on pregnancy leave as a form of gender discrimination). Second, it may make sense politically and legally to narrow the focus of your campaign.
If your board doesn't have any civil rights policies, you'll have to propose a new "free standing" policy. You have two basic options.
First, you can propose a simple, direct nondiscrimination statement. With private institutions like universities and business, this is what people typically use.
The advantage of the "simple statement," like the "piggy back," is that you can use it to help convince board members. It is especially valuable in disarming opposition claims that hidden traps are lurking in the policy. If you think you the text could be valuable in convincing the public, a simple statement is essential.
Most cities, on the other hand, adopt comprehensive policies which spell out how they work in detail. This is especially true if the policy is going to apply to contractors or private employers or landlords. The advantages of a comprehensive model are that it gives people a detailed idea of just what the law may or may not do, and that it can (somewhat) prevent people who are covered or who enforce it from creating ways to get around it.
On the other hand, no policy can completely prevent attempts at evasion, and a carefully worded simple statement can be almost as effective at this.
No matter which basic structure you choose, in a long campaign, be open to the idea of changing. In America, almost nothing goes through an adoption process unchanged.
Policies should cover discrimination based on "sexual orientation," not "sexual preference" or "affectional orientation." "Sexual orientation" has become the most common term, so using something else could be taken as a suggestion that you mean something else.
In addition, the term "preference" suggests you think sexuality is a matter of ongoing adult choice. "Orientation" implies an established part of personality.
Policies should also refer to lesbians, gay men, bisexuals and heterosexuals, not to homosexuals. "Homosexual" is a clinical term that most lesbians and gay men find alienating when used by others, and almost never use themselves. It is no more exact, precise or "legal" than "lesbians and gay men."
Like race and to a lesser extent, religion, sexual orientation is a difficult thing to define with precision. It is tempting to simply leave it undefined, as most civil rights laws do with race and religion.
The problem is that if you don't define the term, opponents are likely to claim that the policy will protect people who have sex with animals, adults who have sex with children, etc. The best way to head this argument off is with a definition which says that sexual orientation means lesbians, gay men, bisexuals and heterosexuals.
Laws against gender identity discrimination are still fairly new. After a while, most civil rights laws tend to be written in one or two standard ways. But as yet, there is no standard definition for gender identity. Experts recommend that to be as inclusive as possible, definitions should encompass:
- A person's internal identity as male or female (gender identity)
- External manifestations of gender identity (gender expression)
- The fact that a person's gender identity or expression may not be associated with one's birth sex.
There are many different ways to write laws which do this, with different strong and weak points. Model I includes a couple of popular approaches. You can check Paisley Currah and Shannon Minter's very good guide (http://www.ngltf.org/downloads/transeq.pdf) on gender identity policies for more help.
It ought to be obvious that in terms of impact and fairness, it doesn't much matter whether a person loses a job because she is a lesbian or because her employer incorrectly thinks she is a lesbian. Unfortunately, it isn't obvious to everyone. Employers try to argue that it is the employee's actual sexual orientation or gender identity, not the employer's motivation, which counts. A few agencies and courts have agreed.
To head off this bit of nonsense, the policy should apply to "actual or perceived" sexual orientation and gender identity. You can do this either in the definition or in the ban on discrimination.
>> Next: 8. Writing Policies -- Important Details
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