COLUMBUS (WKBN) – It’s almost like clockwork. Right around 4:30 p.m. Friday, someone makes an announcement, releases a report or files some paperwork in the hopes of avoiding as much of the news cycle as possible.
Like spotting a flash during a magician sleight of hand, vigilant advocacy groups (and those passionate about an issue that happens to be the subject of one of these file-and-head-home-for-two-days maneuvers) notice these things.
Equality Ohio is one such advocacy group that noticed the Ohio attorney general’s late Friday news dump.
“Folks, in general — and our elected officials are no exception — tend to release things that they maybe aren’t necessarily the most proud of on a Friday afternoon when people are winding down for the weekend, not paying particular attention to their news feed,” said Marshall Troxell, with Equality Ohio. “This, unfortunately, is a pattern that we seemed to be seeing among other state leaders when attempting to undermine LGBTQ equality.”
For more than a decade, advocates like Troxell have been fighting for anti-discrimination equality in Ohio.
Currently, a member of the LGBTQ community in Ohio can legally be fired from their job in the private sector, denied housing and not served at businesses on the basis of their sexual orientation or gender identity.
“The legislature has not moved on this issue and so our position is that sex discrimination ought to be interpreted to be inclusive of sexual orientation and gender identity or expression,” Troxell said.
Attorney General Dave Yost does not see it that way — at least from a legal standpoint.
The announcement Yost made last Friday afternoon was that he had filed an amicus brief with the Supreme Court of the United States on behalf of the defendants (the government).
His 36-page brief details three main points why the court should not rule in favor of the plaintiffs representing the LGBTQ community. But for Yost, it all boils down to the separation of powers.
“When a federal court under the guise of statutory interpretation rewrites a federal statute, it trespasses on Congress’ policymaking authority,” Yost’s brief reads.
In other words, the legislative branch makes the laws and the judiciary branch enforces them. It is a simple, pure statement of fact.
How it will be applied to anti-abortion bills heard by the same court should Roe v. Wade be challenged in the future, will be interesting, especially if the court finds Yost to be right in this case.
If it rejects Yost’s assertion that its interpretation of the law is proper, it could open the door for the court to interpret what the law has to say about viability of a pregnancy and when abortions should and should not occur.
Such a rejection of Yost’s position may lead to a victory on the anti-discrimination front.
Likewise, if the court accepts Yost’s position to be correct, it could shut down any challenge to overturning Roe v. Wade as not only would they have to revisit precedent, but such a ruling would fly in the face of simply enforcing the laws already in place and not rewriting them through interpretation.
Yost’s brief walks a fine line of looking at the situation from a purely legal standpoint. He does not provide an indication as to the appropriateness of anti-discrimination laws for LGBTQ individuals from anything beyond how the law is structured now.
A statement released with the announcement on Friday read:
“This case is about whether the judiciary gets to write new laws or if that should be left to elected legislators. The plain language of Title VII prohibits employers from discriminating because of sex, not sexual orientation or gender identity. If the law is to be amended, Congress, not the courts, should be the one doing it.”
It is the “if” in the last line that demonstrates Yost’s non-commitment to one side or the other in this argument.
In Ohio, advocates for such anti-discrimination protections wish Yost had been more supportive of their plight.
“We are incredibly disappointed to see Attorney General Yost joining the Trump administration in asking the Supreme Court to oppose LGBTQ equality in the workplace,” Troxell said. “Whatever the motivation is for it — if it is shame, if it is attempting to avoid public scrutiny — our position is that we don’t appreciate any attack on LGBTQ Ohioans. That’s what this is.”
Currently, there is a piece of legislation making its way through the Ohio General Assembly at the Statehouse. It is called the Ohio Fairness Act (SB 11) and it’s had two hearings in the Senate Judiciary Committee.
Supporters had hoped it would get another hearing before lawmakers went on break for the summer. Instead, they are pushing to have the chairman of the committee get it back in rotation once lawmakers return this fall.
The bill would provide the anti-discrimination protections the LGBTQ community is looking for in the private sector. They already have the protections in the public sector after an executive order that expanded those protections was signed by Governor Mike DeWine moments after he was sworn into office earlier this year.
But getting the bill through the legislature has proven to be a monumentally difficult task. Opposition to it has been vocal and includes groups like Citizens for Community Values.
Aaron Baer is the group’s president. In reacting to the announcement made by Yost last Friday, Baer wrote in a statement:
“Attorney General Dave Yost has made a commitment to stand up for the law, not play politics. His brief to the Supreme Court is straight forward: activists don’t get to redefine words to achieve political victories. Common sense says ‘sex’ is different from ‘gender identity.’ Since the political left has failed to push their radical agenda through Congress, they are now trying an end-around through the courts. Thankfully, Ohio has an AG that will stand up for the law and Ohioans.”
Because supporters of the bill have had an opportunity to testify, the next hearing of the Ohio Fairness Act is slated to be an opportunity for opponents to share their thoughts.
Supporters of the anti-discrimination protections, like Troxell, are urging the governor to get involved on their behalf.
They say if Ohioans are protected from discrimination in the public sector, then those protections should be extended to Ohioans in the private sector.
They argue a person is no less of an Ohioan based on their sexual preference or their gender identity and all Ohioans deserve to be protected from discrimination.