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January 28, 2011

New Kasich job order covers gays, but not TGs

Columbus--Ohio governor John Kasich has signed a new executive order barring discrimination by sexual orientation in state employment.

But the new measure does not include gender identity, as did the previous one by former governor Ted Strickland. That order expired when Kasich took office on January 10.

Kasich, a Republican, signed the new order on January 21 after widespread criticism for allowing his predecessor’s order to expire, and for picking an all-white cabinet.

It is similar in some respects to the one by Strickland, a Democrat, and quite different in others.

Strickland’s order acknowledged that job discrimination occurs in Ohio by sexual orientation and gender identity, and that while discrimination against other groups is barred by Ohio or federal law, sexual orientation and gender identity bias are not.

Kasich’s new order recognizes neither of these facts. It includes sexual orientation at the end of a list of eight other categories, such as race, religion and age, that are already covered by state and federal civil rights laws.

Strickland’s order was more specific in its definitions than Kasich’s, but for a gay, lesbian or bisexual state employee with a complaint, the orders are operationally similar, essentially instructing the Ohio Civil Rights Commission to investigate and remedy.

Notably, Strickland signed his order on a Thursday morning at a Statehouse ceremony surrounded by 48 cheering LGBT activists, the Ohio Civil Rights Commission, reporters and representatives from progressive employers. Strickland gave a moving speech proclaiming “This is a positive step in the right direction, and one we unquestionably have the authority to do.”

Strickland said at the time that his administration was put together to honor diversity and respect for all Ohioans, including LGBT ones. “We have chosen talented and gifted members of the cabinet,” said Strickland, “and prior to coming on, they knew what kind of administration we were going to be.”

In contrast, Kasich signed his order with two others late on a Friday and released it to the press later still, when reporters were unavailable. The public relations business calls this Friday-afternoon strategy to obscure an action “taking out the trash.”

But the most striking element of Kasich’s order is the purposeful removal of protection for transgender state employees, compared to his predecessor.

“The governor is opposed to discrimination in state employment and has made that clear in this executive order in the way that he feels is most appropriate,” said Kasich spokesperson Rob Nichols in an e‑mail answering why this was done.

Nichols, who was with the governor when he sent the e‑mail, said in an earlier phone call that he didn’t know much about how executive orders worked and couldn’t talk about it.

“So by that you mean the governor does not feel it is appropriate to protect transgender state employees from employment discrimination?” he was asked. “That he feels that it is okay for the state to discriminate against transgender employees? That’s what you are saying.”

“Okay--you have my quote,” Nichols replied. “I am happy leaving it at that.”

Nichols declined any further invitation to comment.

Executive orders are not law. They are policy declarations of an administration which, in this case, can be the basis for legal action. They tend to set the tone for the rest of state government, as was the case when Ohio universities and community colleges began revising their non-discrimination statements to be consistent with Strickland’s order.

Once news of Kasich’s order spread, opposition to the removal of gender identity also spread.

The American Civil Liberties Union of Ohio urged Kasich to reconsider his decision to eliminate gender identity and expression from an executive order prohibiting discrimination against state employees.

“Transgendered people are perhaps one of the most vulnerable groups of Ohioans because fear and stigma continue to follow the community,” said ACLU of Ohio director Christine Link. “Those who were already employed by the state and were open about their lives are now in the unenviable position of being fired or demoted because they are no longer protected. This is unfair and unacceptable for our public servants.”

Brian Hester, a Cincinnati employment attorney who blogs at Plunderbund, said Kasich “picked the most vulnerable components of the LGBT community to pick on.”

Hester also noted an August 15 candidate interview by the Columbus Dispatch in which Kasich was asked, “Would you renew the 2007 executive order that no one can be fired from or denied a state job on the basis of sexual orientation or gender identity?”

Kasich answered, “Yes.”

Hester said, “Kasich has fulfilled only three-fourths of his promise.”

“This is a testament to the growing acceptance of the GLB community,” Hester said, adding that the disconnect of the T is disturbing.

“The T stands alone,” Hester said.

“I don’t understand why Kasich didn’t fulfill all his promise,” Hester said.

“After four years of Strickland’s order, there were no problems caused to the state, and it was a significant moment for civil rights in Ohio,” Hester continued.

“Kasich isn’t turning a forward page,” Hester concluded, “he went backwards.”

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