As we head to the polls tomorrow, faced with a presidential administration that is increasingly hostile to the rights of the LGBTQ community, Cuyahoga County voters will get to decide on a proposed amendment to the county’s charter that, while largely toothless, will at least operate as a partial rebuke.
Currently, the county charter proscribes discrimination against county employees on the basis of race, color, religion, sex, national origin, sexual orientation, disability, age, or ancestry. If approved by voters, Issue 10 would amend the County charter to add “gender identity/expression” to that list of protected classes.
While the proposed amendment does not define gender identity/expression, presumably that class will be interpreted similarly to the way those terms are defined by the Cuyahoga County Commission on Human Rights ordinance, which was enacted in September. The enacting code of that ordinance defines gender identity and expression as “an individual’s actual or perceived gender-related identity, appearance, expression, mannerisms, or other gender related characteristics, regardless of the individual’s designated sex at birth.”
The county’s Human Rights ordinance prohibits discrimination in housing, public accommodation, and employment on the basis of race, color, religion, military status, national origin, disability, age, ancestry, gender, sexual orientation, and gender identity or expression. Applying to all employers who employ 4 or more individuals in the county, that ordinance provides for civil fines of $1,000 for a first-time violation and up to $5,000 for a third or subsequent violation.
Like the county’s Human Rights ordinance, Issue 10 does not create a private right of action for aggrieved employees. Similarly, passage of Issue 10 will not change the fact that the county’s charter may not serve as a proper basis for the clarity element in a wrongful termination of violation of public policy claim.
While Issue 10 does not go nearly far enough, it is an important message at a time when President Trump’s Department of Health and Human Services is arguing to define gender, in the context of Title IX, as an immutable characteristic, determined by the genitals a person is born with.