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to Section One | to Arts & Entertainment
posted Friday, May 13, 2016 - Volume 44 Issue 20
SGN EXCLUSIVE INTERVIEW:
ACLU-WA Deputy Legal Director Jennifer Shaw
I-1515 is illegal, ACLU attorney says
Section One
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SGN EXCLUSIVE INTERVIEW:
ACLU-WA Deputy Legal Director Jennifer Shaw
I-1515 is illegal, ACLU attorney says

by Mike Andrew - SGN Staff Writer

I-1515 is illegal, according to an ACLU attorney working with Washington Won't Discriminate, the organization set up to defeat the anti-Transgender measure should it make it to the November ballot.

Jennifer Shaw, Deputy Legal Director ACLU Washington, told SGN that the initiative likely violates both state and federal laws, and Washington Won't Discriminate is working on possible legal actions to counter it.

'At this point it's still too early to set the legal strategy,' Shaw said, 'because we don't even know if it will qualify for the ballot, and we don't know what the voters will do.'

One of the problems, Shaw told SGN, is that opponents of the initiative cannot file a preemptive suit to keep it off the ballot.

'In Washington state law it's well established that challenges must come after voters have made their decision,' she said.

'The only time I can remember a preemptive challenge being successful was a couple of years ago in Spokane. It was a local initiative, and the courts stepped in because it was asking the City Council to do something it couldn't do. In general, though, the courts have said 'let's see what the voters say' before ruling on the outcome.'

In the 2013 case Shaw cited, the Washington Supreme Court ruled that Spokane's so-called 'Community Bill of Rights' could not go on the ballot because its provisions exceeded the powers of city government.

So far, her legal team has successfully fought for fair ballot language, Shaw said, defeating an attempt by pro-initiative forces to say the measure defends 'privacy.' Now they are studying the laws protecting Washington's Trans residents.

Shaw said she was encouraged by the US Department of Justice (DOJ) letter to North Carolina Governor Pat McCrory and DOJ's subsequent lawsuit challenging similar measures in that state.

'The DOJ guidance is pretty clear,' Shaw told SGN. 'The guidance is on the basis of federal law, not constitutional law, but they're saying Title VII prohibits discrimination against Transgender individuals.

'So we're looking at the [DOJ] letter. It's clear from that that discrimination based on sex means discrimination based on sex, and that includes gender identity.

'We'll also look at state law, and we'll look at both the state and federal constitutions,' in determining a potential legal challenge to I-1515 should it pass.

Shaw told SGN she found McCrory's lawsuit against federal authorities 'an interesting tactic' to preserve discriminatory legislation.

'I was just reading about that this morning,' she said. 'They're asking a federal court to give an advisory opinion on the interpretation of federal law - kind of preemptively.

'They haven't lost any federal funding yet and the governor doesn't want to wait till they do, and then they have to go scrounging for money.'

One of the consequences of violating federal civil rights protections for Trans people is that federal agencies would then withhold funding from states with discriminatory laws. North Carolina might lose as much as $4.8 billion, according to the Williams Institute, and Washington stands to lose $4.5 billion.

Although the Fourth Circuit Court of Appeals - which has jurisdiction over North Carolina - has already ruled that Virginia schools must allow Trans students to use restrooms that correspond to their gender identity, Shaw declined to speculate on the outcome of the dueling North Carolina lawsuits.

'Judges are independent and make decisions based on their own views,' she said. 'You never can tell what a judge will do. It's similar to what we saw with marriage equality - some courts decide one way and some another way.'

Ultimately it will be up to Washington voters to reject discrimination, Shaw said.

'Discrimination is discrimination,' she told SGN. 'The Trans community is small and not very vocal. It's an easy target.

'We have to stand side by side. The initiative is as an opportunity to engage in public discussion on who Trans people are and why the law protects them.'

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SGN EXCLUSIVE INTERVIEW:
ACLU-WA Deputy Legal Director Jennifer Shaw
I-1515 is illegal, ACLU attorney says

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