E-Alerts & Press Releases

Court Strikes Challenge to Transgender Bias Law

September 10, 2008: On September 9, 2008, the Court of Appeals issued a brief per curiam order in favor of the Appellants in the election referendum case of Doe v. Montgomery County Board of Elections.

This case concerned a referendum petition that was filed by opponents of a bill passed in Montgomery County that will add transgendered individuals to the groups protected by the county’s anti-discrimination laws. The Montgomery County Council had voted unanimously to adopt the bill, which was intended to address unemployment, poor housing, poverty, lack of safety, and other ills suffered by transgendered individuals. Despite this strong gesture of support, a group called Maryland Citizens for Responsible Government had filed a petition for a referendum on the bill, which would have subjected the law to a vote in the November general election before it becomes effective. After the Montgomery County Board of Elections certified the referendum petition as sufficient, a diverse group of county voters filed a lawsuit challenging its sufficiency. The lawsuit cited numerous problems that would render thousands of signatures, and the petition, invalid. A Montgomery County Circuit Court judge agreed that there was an insufficient number of signatures for the petition to be certified, but ruled that the challengers filed their lawsuit too late.

On August 20, 2008, former PJC Murnaghan Fellow Gregory Care filed an amicus brief in the Maryland Court of Appeals in the case, joined by CASA de Maryland and the Maryland Disability Law Center. The PJC’s brief is posted on the Court’s webpage dedicated to particularly notable cases on the docket: http://mdcourts.gov/coappeals/highlightedcases/index.html. Oral argument was held in the Court on September 8, 2008.

Although the Court will later issue a written opinion, this swift order means that the challenge to the referendum petition was timely, the referendum petition was fatally flawed, and thus the referendum will not appear on the November ballot and the important anti-discrimination law at issue will go into effect without further delay. An article in the Daily Record is below.

No vote on transgender bias ban
Top court blocks referendum on Montgomery County law
Daily Record Legal Affairs Writer

September 9, 2008 6:57 PM

ANNAPOLIS — Montgomery County voters will not get a chance to vote on a new law that bans discrimination against transgendered individuals, the state’s highest court has held.

Acting just one day after hearing arguments on the issue, the Court of Appeals overturned a ruling that allowed the countywide referendum to occur.

The top court’s three-sentence order instructed the court to enter judgment “forthwith” for transgender-rights group Equality Maryland and others who had challenged the referendum on the law, which was passed by the Montgomery County Council last November.

The Court of Appeals gave no explanation for its order, stating only that its reasons would be given in an opinion to be filed at an unspecified date.

Councilmember Duchy Trachtenberg, the law’s chief sponsor, praised Tuesday’s order as “a victory for justice and equality under the law.”

“Montgomery County voters, in my mind, are spared an expensive and wrenching process that would have given further amplification to the worst politics, those politics of hate and personal attacks,” she said.

Maryland Citizens for a Responsible Government, which mounted the petition drive, said it has not conceded defeat and will examine the court’s full opinion, when it is issued, and weigh its legal options.

“We certainly intend to do all we can to ensure the voters of Montgomery County have a vote in this,” said Michelle Turner, the group’s spokeswoman.

On hold

The law, which the Montgomery County Council passed Nov. 13, would ban discrimination against the transgendered in employment, public accommodations, housing and cable television and taxicab service.

Turner said her group started the petition drive because Montgomery County voters deserved a chance to decide for themselves if people who have “made a choice” to change genders should have legal protection against discrimination.

One question left unresolved by Tuesday’s order is when — in the absence of another legal challenge — the law will take effect.

It had been slated to go into effect last Feb. 20, but was halted by the Montgomery County Board of Elections due to the then-pending referendum effort.

Dan Furmansky, executive director of Equality Maryland, hailed the court’s order forestalling the referendum.

“This long overdue, crucial law is all about assuring that unchecked bias is not allowed to inhibit our neighbors’ abilities to make a living or rent a home, and as a Montgomery County resident, I breathe a sigh of relief that this campaign to roll back anti-discrimination protections is now over,” Furmansky said in a statement. “While we were ready to make our case to the voters of Montgomery County, it is far better that our transgender brothers and sisters be spared the rhetoric that the referendum proponents have subjected them to over the past year.”

Montgomery County resident Alyson D. Meiselman, a lawyer and a transgender individual, said she welcomes the new law and the court order blocking the referendum.

She said the law will not end discrimination against transgendered individuals but it is a good start.

“When a law is passed it doesn’t necessarily mean that people are going to behave properly,” Meiselman said, adding that racial discrimination continued even after passage of the 1964 Civil Rights Act and did not wane until many years later. “I transitioned 10 years ago and you would have thought people would have gotten used to it, and that just isn’t the case.”

Timing, signatures at issue

During oral arguments Monday, the high court appeared poised to rule in favor of the referendum’s opponents as many judges voiced disagreement with Montgomery County Circuit Judge Robert A. Greenberg’s decision to choke off the challenge because it had been filed too late.

Greenberg had said they failed to file their challenge within 10 days of the county Board of Elections’ Feb. 20 verification of signatures on the referendum petition drive waged by MCRG.

But Chief Judge Robert M. Bell and other judges said during the argument session that the 10-day clock should not have started until the Board of Elections certified the referendum on March 6. Certification turned the law’s supporters into an “aggrieved” party in that they, for the first time, faced the reality that the referendum would go forward and the law might be overturned, Bell said.

Greenberg, in his controversial ruling, indicated that the challengers might have succeeded if they hadn’t missed the deadline.

According to the Board of Elections, MCRG collected 26,892 signatures. Greenberg concluded that the petition needed 27,615 signatures, representing 5 percent of the county’s registered voters.

The Board of Elections had erroneously set the 5 percent figure at 25,001, Greenberg said.

Jonathan S. Shurberg, Equality Maryland’s attorney, declined to speculate on the reason for the high court’s order, saying he would await the opinion but was pleased at the court’s conclusion.

“For whatever reason, the court has vindicated the right of citizens to challenge what referendum sponsors submit,” said Shurberg, a solo practitioner in Silver Spring.

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