Thursday, February 17, 2011

PART I -Politics in Maryland - The reality of how law is made

For a moment let’s completely ignore what is in a given bill presently and talk about the mechanics of the situation in Maryland.

Presently only thirteen states and the District of Columbia have gender identity protections. For those who are math challenged that is about 26% of the US by state and by population it is presently 29% of the American public. This would not include any local jurisdictions who offer gender identity protections, like the 109 local ones as of 2009.  And according to my good friend Mara Keisling of NCTE that number is actually about 40% nationwide.

For those wondering who covers what take a look at this from 2009:

That list could stand some freshening clearly, but it shows enough to illustrate the idea.
And if you consider that there are so called “liberal” states notably absent from that list (eg, Massachusetts, Maryland and New York) one has to ask, what is the problem?  For our purposes I will just focus on Maryland, as this is where I live.

The Referendum Problem in Maryland

Maryland is one of 23 states that have a legislative referendum system. That means if the voting public disagrees with a new law it can be challenged at the ballot box. In Maryland there is a window of time for those things to happen. And what that means is if you miss the window the law becomes reality and cannot be challenged again unless repealed by the legislature. However, once defeated in a public referendum you can rest assured that the law will never be brought up again in the legislature. Certainly not with whatever provisions made it unpopular in the first place.  For those needing reference to the details I refer you to the Constitution of Maryland.

For the next bit you will have to forgive me.  As an engineer I analyze things for a living.  So I was trying to understand why public accommodations had passed and stuck in other states and why such a thing was not possible in Maryland.  So bear with me while I digress a bit. 

Of the 13 states who have passed a public accommodation gender identity law only 6 are referendum states. And of those, only one, Oregon, comes close to Maryland’s absurdly low barrier to entry for a referendum to appear on a ballot.

[State, Percentage of registered voters required, Number of signatures needed]

  • California, 5%, 433,971
  • Illinois, 10%, 334720
  • Maine, 10%, 55087
  • New Mexico, 10%, 60771
  • Oregon, 4%, 58142
  • Washington, 4%, 120,577
  • Maryland, 3%, 55736
Let's presume two reasonable things. For a group to oppose a new law first there is a cost to get the signatures, and then secondly once that is done there will be a challenge to those signatures by the opposition, also at a cost. And all of that before it ever gets to a statewide ballot. And assuming it does get on the ballot then you would need plenty of money (millions likely considering that you are in the Baltimore and Washington media market) to educate and sway the public to agree with your points, be they for or against.

And so if I was seeking a battleground for such a thing I would choose Maryland as I would get my best bang for the buck. This would be true for any law so opposed. Maryland is a “bargain”.
I contend that in those other states that barrier was perhaps too high, or the task to hard for opponents to mount, or maybe the proponents too well funded. I suppose that it could have happened in Oregon, but I do not know the politics of Oregon to comment further on why it did not happen there.

Money Talks

So regardless of your position on any bill in Maryland you need to consider this as a possibility of what could happen to your bill. And if you know for a fact that there is a well funded and organized opposition you must prepare for it. And presently there is indeed a well funded and organized opposition to all things LGB and T in our world.

So there are two ways to reduce this referendum item as a concern. One would be to have a substantial warchest to defend against the referendum effort, the second would be to diffuse the referendum from the start by not having a controversial bill. And one of the challenges that our lobbyist organizations in this state have had is raising funds, especially from the trans community to support trans issues. Even for marriage equality this is a problem. You see nobody wants to back something and then lose the investment in a referendum.

And to be very frank, if the matter goes all the way to a referendum there is likely no money presently in Maryland to defend against it. And with respect to any of the present bills the battle will have to be fought in preventing the referendum in the first place.

And the very sad part of this is that because we (the trans community) are underfunded we cannot win a battle resulting in a referendum on public accommodations at the state level. It just costs too much to do and there is no source to fund the effort. And so rather than hold all immediately obtainable rights for transpeople hostage, the bill that was currently introduced by legislators has purposely omitted public accommodation so that the other rights can be had right now, today.

There are those that would state that this is conceding defeat before we even get out of the gate. I would earnestly disagree. What we have done is decided to fight a battle, rather than an entire war in a single battle. Most struggles worth fighting for do not happen in a single shot. Previous efforts have failed repeatedly. Doing the same thing over and over again expecting a different result is often described as the height of insanity. This new approach is a formula and strategy for success that benefits all trans Marylander’s today.

And I contend that with job and housing security we can have the basis for funding our future efforts on the public accommodation, and a host of other trans rights, issues like health insurance as well. I frankly do not ever expect to see a public accommodation bill at the state level in Maryland because of the mechanics I have previously outlined but it will happen locally, as it has already in over 100+ other places in the US, county by county, city by city.

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