Democrats in the state Legislature are renewing a push to add an equal rights amendment to the Maine Constitution to explicitly prohibit discrimination against specific groups.
Dozens of people testified in support of the measure during a public hearing Monday, while several opponents argued it wasn’t needed or would have negative consequences.
If passed, the bill sponsored by Rep. Lois Reckitt, D-South Portland, would send a referendum question to Maine voters asking whether they want to constitutionally prohibit discrimination based on race, color, religion, sex, sexual orientation, gender identity, gender expression, age, physical or mental disability, national origin or ancestry of an individual in the state of Maine.
Language prohibiting discrimination exists in both the Maine and U.S. constitutions and in state and federal laws. But the existing constitutional amendments are vague and do not specify who is protected from discriminations, and existing laws can be changed. An amendment with specific anti-discrimination language would safeguard rights that many people take for granted and protect Mainers from discrimination in years to come, Reckitt and other supporters say.
Reckitt has been advocating for constitutional amendments protecting equal rights at the federal and state level for over 55 years. Her 2022 effort, which would have brought the question of whether to enshrine prohibition of sex-based discrimination in the state constitution to Maine voters, failed by a narrow margin to win the two-thirds support in both the House and the Senate required for constitutional amendments.
Reckitt broadened the scope of her bill to ban discrimination against a series of groups, not just women, in the hope of protecting more people and bringing in greater support.
Proponents, including the Maine Department of Labor, Pride Aroostook and the Maine Council on Aging, said the amendment, which would need to be approved by voters before being added to the constitution, is long overdue and necessary to protect Mainers from discrimination in perpetuity. Opponents, including individual Mainers, the Roman Catholic Diocese of Portland and Maine Right to Life, worry that this law would allow transgender students to use locker rooms and bathrooms aligned with their identity, lead to increased abortions and hurt women.
Years ago, Rep. Laurie Osher, D-Orono, who is gay, took on the U.S. Forest Service in a discrimination case. She argued and settled a case that in prohibiting her girlfriend to come to her workplace to pick her up, her supervisor had illegally discriminated against her on the basis of sex. If she had been male, she argued, no one would have said there was a problem with her girlfriend coming to pick her up at work or that it created a hostile environment, which is what her supervisor told her at the time.
In settling the case, the Forest Service and its parent agency, the U.S. Department of Agriculture, agreed to make sexual orientation a protected class.
This was a win for civil rights, Osher said in testimony to the judiciary committee in support of L.D. 1412. But she said it shouldn’t be up to individuals to take on the establishment.
“Here in Maine we should protect people from discrimination now,” she said.
Osher said prohibiting discrimination in the state constitution would help do that, and that voters should get the chance to decide whether to amend the Maine Constitution in this way.
FIVE-DECADE FIGHT
Reckitt, 79, has been advocating for women’s rights for decades. In 1971, she attended a speech by a member of the National Organization for Women who had come to the Pine Tree State fresh from a women’s rights rally in Washington, D.C. Reckitt was inspired and started the Maine chapter of the National Organization for Women the next day.
Prohibition of discrimination against women might seem an open-and-shut issue in the United States, put to rest with the equal rights amendment, which was first introduced to Congress in 1923 and passed in 1972 and states: “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” But it’s not. Three-quarters of states must vote to ratify a constitutional amendment in order to add it to the constitution. It wasn’t until 2020 that the U.S. reached that three-quarters milestone, more than four decades after the original 1979 ratification deadline, leaving the amendment in a legal gray area, still not officially enshrined in the U.S. Constitution.
This is Reckitt’s final term. It is her fourth session and the fourth time she’s introduced an anti-discrimination bill. She’s determined to give everything she has to try to enshrine equal rights in the Maine Constitution, she said.
In years past she’s gotten close to passing bills that would ask voters to amend the state constitution to explicitly prohibit discrimination based on the sex of an individual but has had trouble garnering support from Republicans. In 2019, her bill fell shy of winning the two-thirds support needed by two votes.
This year, she’s hoping her expansion of the bill’s scope to focus on race, color, religion, sex, sexual orientation, gender identity, gender expression, age, physical or mental disability, national origin or ancestry, rather than just sex, will help bring in supporters.
“There is hardly anyone who doesn’t have someone in those classes in their life,” she said. “I think it’s a framework that may just get us over the finish line.”
A similar bill passed at the ballot box in Nevada, a purple state, last year.
Opponents of Reckitt’s bill largely focused on how it could impact abortion and shared concerns about transgender people using bathrooms and other commonly gender-segregated spaces that align with their chosen identity and how that could impact women. Some of the opposition testimony attacked the identity of transgender people.
CONCERNS ABOUT ABORTION AND BATHROOMS
The Roman Catholic Diocese of Portland said that if the bill was amended to protect unborn children, it would perhaps consider supporting it.
The diocese said it is worried about “medically necessary abortions” being paid for with Medicaid, government healthcare for low-income residents. In other states courts have ruled that if the state funds childbirth expenses for low-income, Medicaid-eligible women, it also must fund medically necessary abortions.
Others opposed to L.D. 1412 said that the bill goes too far and isn’t necessary because there are already sections of the U.S. and state constitutions that require equal treatment of citizens.
“Why are such laws as 1412 needed today when the equal treatment of all is built into the fabric and the laws of the United States of America?” Addison resident Catherine Fonda asked in her testimony, after citing the 14th Amendment and the Maine Constitution.
The Maine Human Rights Act is the state’s anti-discrimination law. It prohibits discrimination in employment, houses, places of public accommodation, education and extension of credit on the basis of all classes outlined in L.D. 1412. Putting those protections in the constitution would remove the risk that those rights could be taken away.
“If we’re protecting all these groups in statute in the Maine Human Rights Act, why not put that in the constitution so we don’t have to worry about a future legislator wiping out these protections the human rights act gives us?” Reckitt said.
As Reckitt advocates for her bill in Maine, Congress is considering whether it can write the Equal Rights Amendment into the U.S. Constitution.
Congress passed the Equal Rights Amendment in 1972, but three-quarters of the states – 38 – have to ratify the amendment for it to be added to the constitution. When Congress passed the amendment, it set a ratification deadline of 1979. But it took a lot longer than that for enough states to get on board. It wasn’t until 2020, when Virginia ratified the amendment, that it was pushed over the three-quarters threshold. Maine ratified it in 1974. But because the deadline for ratification passed years ago, the question of whether protections for women’s rights are actually added to the constitution remains.
Amendment supporters failed in the U.S. Court of Appeals for the Federal Circuit in February to prove that the amendment should be added to the constitution even though the deadline passed, but the fight to create a constitutional ban on sex-based bias is likely far from over.
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