Sussex has voice muted on HB 36

Below the C&D Canal, Delaware is a true blue state. Sussex and Kent Counties voted Bush for president and Lee for Governor in the last election.

However, the numbers have it in New Castle County. Apparently, Smyrna marks a bit of a political divide. Case in point, the updated and revised version of the bill formerly known as HB 99 — now HS 1 for HB 36.

The bill adds “sexual orientation” to the standard list (age, sex, race, etc.) of characteristics upon which employers may not discriminate.

HS 1 for HB 36 passed the state House of Representatives by a 22-18 vote on March 22, in a vote virtually identical to the one on HB 99 back in 2003.

Then, a solitary representative from Sussex County (Rep. Pete Schwartzkopf, 14th district) supported the anti-discrimination legislation (alongside two representatives from Kent County).

Again this year, Schwartzkopf cast the sole Sussex vote in support. In Kent, only Rep. Nancy Wagner (31st district) supported HS 1 for HB 36.

However, in New Castle County, more than three times as many legislators (20) voted for the bill as (six) voted against it.

There (Wilmington), the Delaware Liberty Fund (DLF) is hoping the state Senate will follow suit.

Here (Dagsboro), the Delaware Family Foundation (DFF) is hoping everyone will call their local Senator and ask him to oppose the legislation.

According to DLF President Bob Martz, “When my mother was born, women couldn’t vote. When I was young, there was segregation.

“If we can come through that and reach the point where we are today, I’m sure we can work around this,” he said.

At the same time, Martz said he hoped “more enlightened” employers around the state would approve sexual orientation antidiscrimination policy “regardless of legislative or judicial fiat.” DFF Chair Andrea Evans had a different take.

Evans said the bill tended to classify “homosexual behavior” as a category upon which to base civil rights arguments. “Trying to prove discrimination based on gender is nebulous enough, much less sexual orientation,” she said.

According to Evans, despite all the disclaimers, HS 1 for HB 36 could still lend legal clout to subsequent challenges in the courts.

“The courts could find a plaintiff eligible for special protection — but then what would be the definition of eligibility for this protected class,” she asked. “Homosexuality is not an immutable characteristic, and it’s not an identity — it’s a behavior.”

The medical jury is still out on the first definition. Scientists have tried to track sexual orientation by studying hormone levels, genetic markers and brain structure, but evidence for sexuality as an inherited trait remains inconclusive — and defining an “identity” is even trickier.

As Martz noted, “Anyone can go to court, on any issue,” and the language of HS 1 for HB 36 should have addressed every legitimate legal concern.

At any rate, it’s increasingly become a moot point. Many government and private sector employers have already incorporated sexual orientation antidiscrimination language into their hiring policies.

HS 1 for HB 36 is in President Pro Tempore Sen. Thurman Adams hands now, and should find its way into one or another Senate committee presently.

Whether or not it will make it to the Senate floor for a vote remains to be seen.