Legislators remove ‘protected classes’ language from harassment rules

By Ramsey Scott
Wyoming Tribune Eagle
Via Wyoming News Exchange
 
CHEYENNE — After an afternoon filled with emotional testimony, leaders of Wyoming's Legislature voted to strip out anti-discrimination language from the governing body's policy for lawmakers and staff. 
The Management Council, made up of party leaders from both chambers, voted 7-6 to remove language from its policy that explicitly forbade harassment based on protected characteristics including race, religion, age, sexual orientation or gender identity. 
The policy change also removed protected classes from prohibited discrimination and harassment. 
Sen. Michael Von Flatern, R-Gillette, joined the five Democrats on the council in voting against removing the protected class language from the harassment policy.
The new language now defines harassment and discrimination for lawmakers and staff of the Legislative Service Office as conduct that violates state or federal law, or substantially interferes with or affects a person's performance or employment. The new language also specifically allows for "civil discussions of controversial topics within the public discourse." 
The change was one of four options presented to lawmakers Wednesday, including leaving the language as is. 
Incoming Senate President Sen. Drew Perkins, R-Casper, said there was no need to include protected classes in the discrimination and harassment policy. He said before he voted for the change that the protections included in the Wyoming and U.S. constitutions provided protections for everyone.
"I think the thing I like about (the change) is it most closely resembles and respects the Founders' intent and the language we find in the Constitution. And it's not limited to just sexual orientation or gender identity, but it extends to physical attributes or other issues," Perkins said. "This most closely resembles what our Constitution is and how we should reflect our behavior in the Legislature." 
Council member Sen. Chris Rothfuss, D-Laramie, said his reading of the new language defines harassment or discrimination as something that's against state or federal law. That means to credibly prove harassment, state or federal prosecution needs to take place before someone can be reprimanded. 
"That seems like pretty substantial rollback of a policy that's designed to protect our LSO and the Legislature against discrimination and sexual harassment," Rothfuss said. "That would be the most difficult barrier probably of any workplace non-discrimination, anti-harassment policy I could think of. 
"If you haven't broken a federal or state law, you're innocent (of harassment)." 
The approved changes altered the Legislature's harassment policy, which had just been updated earlier this year in the wake of sexual harassment claims in state legislatures across the country. In the update, language was added to include sexual orientation and gender identity as a protected class.
The hearing room for the Management Council meeting Wednesday was packed with people on both sides of the issue. Public comment was limited to 30 minutes for each side, and speaker after speaker made their case to council.
Several Republican lawmakers and the chairman of the Wyoming Republican Party spoke in favor of removing protected classes from the harassment policy. Members of the public echoed lawmakers' sentiments that protected class language infringed both on their religious freedoms and their First Amendment rights. 
Current Rep. and Sen.-elect Cheri Steinmetz, R-Lingle, said the idea of protected classes for sexual and gender identity was antithetical to the idea of equality. She argued that the due process rights of lawmakers were under attack by the policy despite good intentions.
"Equality is not something to be grasped. It is already guaranteed to all people by the Constitution, and additional protection isn't equal but a special one," Steinmetz said. "By adopting policy that is not based on laws passed by the state or federal legislative bodies and is undecided in the courts, we create an arbitrary policy which does not apply equally to all."
Rep. Nathan Winters, R-Thermopolis, said the policy adopted earlier this year was a muzzle on freedom of religion and speech. He wasn't advocating for intolerance, he said, but he believes the harassment policy would keep civil discourse from taking place in the Legislature. 
"I believe very strongly in the right to a free conscious, and the ability to speak freely. And language like this, rather than protecting freedom, has been used consistently across the country to limit it," Winters said. "It has been used to weaponize the law regarding free conscious, especially toward people of faith. And regardless of one's views on lifestyles, no one should desire to diminish the First Amendment right to a free debate of ideas."
Sen. Anthony Bouchard, R-Cheyenne, brought to the discussion his own issues with free speech. He asked why those who were trying to create protected classes didn't come to his defense in a 2017 incident in which he confronted three University of Wyoming students over a presentation they made about race and concealed carry laws. 
"I don't recall a lot of the people that would support this coming to my rescue when I was attacked by people at the university for things I didn't even say. And when they didn't like what I said, they called the police. And when that didn't work, they brought me up on ethics violations," Bouchard said. 
"And that's the weaponization that can go on. I think we have a ballot box. I think what we're doing here is we can weaponize against a legislator."
Lawmakers and members of the public who spoke in favor of keeping the protected language in the statue saw it as a necessary safeguard against incidents of harassment and hatred they have experienced. 
Rep. Dan Zwonitzer, R-Cheyenne, described an incident during a debate in 2011 on the Legislature floor when another lawmaker said all gay people die by 40. Zwonitzer, who said he threatened that lawmaker with violence if he said that toward him again, was reprimanded for his action. 
Zwonitzer said he deserved the reprimand. But he took serious issue with a legislator standing in the state's governing body saying that. 
"What if he had said that to one of my children? 'Oh, by the way, your dad is gay and he's going to be dead by 40,'" Zwonitzer said. "And that's kind of what I think this policy is in place to protect. We have members of our institution who are held to a higher standard as elected officials than the average member of the public, who can say whatever they want in a committee meeting." 
Zwonitzer said the policy provides both protection and a process for staff and interns who feel harassed because of their sexual identity or religion, something he knows has happened in past sessions. 
Much of the public testimony focused on the message removing protected classes from the Legislature's harassment policy would have to LGBTQ members of the public. One man spoke of how his own self-described bigoted beliefs about homosexuality were changed by the people in his life. His grandson had transitioned from male to female, and he was afraid of the bigoted views she would have to face in a state that doesn't recognize her worth. 
The Rev. Hannah Roberts Villnave of the Unitarian Universalist Church of Cheyenne said the right for her and her wife to not be harassed didn't infringe on anyone's religious freedoms. As a minister, Villnave said she would be the first to fight any infringement on religious rights. But one's religious freedom doesn't include the right to actively harass her or her family when they engage in the state's governing process. 
"(The policy) maintains that people like me, whether we're citizens, interns, staffers or legislators, get to go unharassed in our interactions with the folk we have elected to represent us," Villnave said. "It will tell me we're not welcome here, which is a little bit funny. Because we're a married couple, both of us have master's degrees, we're both employed in the helping professions and we're preparing to welcome our first child in February. 
"We're exactly the demographic Wyoming seems so desperate to figure out how to attract into relocating here."