DART won't discriminate unless state and/or federal law says it's OK to discriminate

We just received the final, final version of DART’s proposed new nondiscrimination policy, and it looks like the Board of Directors added one word last night: “except.”

I’ve bolded and capitalized the word in the below paragraph, which is taken directly from the final version of the policy.

DART is committed to hiring, promoting and retaining the best qualified persons in all positions and, EXCEPT to the extent permitted by federal and/or Texas law, DART will not discriminate on the basis of race, color, religion, national origin, sex, age, disability, genetic information, veteran status, sexual orientation, gender identity or any other characteristic protected by law.

Now I’m no attorney, but here’s my question: Am I crazy or is this basically saying that DART won’t discriminate UNLESS said discrimination is permitted by federal and/or state law? Because the fact of the matter is, discrimination based on both sexual orientation and gender identity is currently permitted by both federal and state law.

In response to questions about this, DART spokesman Morgan Lyons swears up and down that the intent of the new policy is for the agency to become more inclusive and add gender identity. And I believe him, but that still doesn’t explain this wording. Furthermore, Lyons says I can’t talk to one of the agency’s attorneys about it, because they would just refer me back to him.

I’ve left a message with Ken Upton, a local LGBT civil rights attorney, to get his take, so I’ll be updating with that in a bit hopefully. I’ve posted the final version of the policy that was sent over by Lyons this afternoon after the jump. Note that he has highlighted the word “except” to indicate that it was added last night.

—  John Wright

Did the DART board break the law when it talked trans protections behind closed doors?

If nothing else, I’m grateful for the little lesson on Texas open meetings law that I received this morning. I’ve worked as a journalist in three states over 10-plus years, so it all tends to blur together in my mind. But somehow, when the DART board closed its meeting last night, it just didn’t seem right.

To recap, the board met in a closed session for 30 minutes to discuss with their attorneys a proposal to add transgender protections to the agency’s nondiscrimination policy. After the meeting was reopened and we were allowed back in, board members promptly voted 11-2 to approve the proposal after no public debate. A final vote on the trans protections will come next week.

—  John Wright

UPDATED: DART advances trans protections after discussing them behind closed doors

Following a 30-minute executive session to discuss the item behind closed doors, DART’s Board of Drectors voted Tuesday evening to advance a proposal to add transgender protections to the agency’s nondiscrimination policy.

The proposal, which came in response to allegations that DART discriminated against a transgender bus driver, now proceeds to a final board vote on Tuesday, June 22.

The board, acting as a committee-of-the-whole, voted 11-2 to advance the proposal to next week’s meeting.

Tuesday’s vote came after the board voted 6-5 to delay the proposal last month, requesting more information about the definition of “gender identity” from the agency’s attorneys. The attorneys reportedly provided this information during the executive session prior to Tuesday’s vote.

Once the meeting was reopened, there was no board discussion of the proposal before the vote was taken.

DART spokesman Morgan Lyons noted that Texas open meetings law allows government bodies to conduct closed sessions to discuss information that falls under attorney-client privilege.

However, a Houston-based attorney who’s an expert in open meetings law said Wednesday morning that the circumstances of the closed session sounded “extremely suspicious.” Joe Larsen, a board member for the Texas Freedom of Information Foundation, questioned whether the entire 30-minute closed session was devoted solely to information that falls under attorney-client privilege.

“It sure sounds to me like they went beyond whatever legal implications this thing may have, just because of the time frame in combination with the complete lack of discussion once they went back into open session,” Larsen said.

Voting in favor of the proposal were DART board members John Danish, Loretta Ellerbe, Jerry Christian, Pamela Dunlop Gates, Raymond Noah, Robert Strauss, William Tsao, Tracey Whitaker, Faye Moses Wilkins, Claude Williams and William Velasco.

Voting against the proposal were DART board members Scott Carlson and Mark Enoch. Carlson represents Dallas, which has had trans protections in a nondiscrimination ordinance since 2002. Enoch represents Farmers Branch, Garland and Rowlett.

—  John Wright

Is DART trying to water down proposed protections for transgender employees?

imagesTheoretically it should take only two words for Dallas Area Rapid Transit to amend its nondiscrimination policy to include transgender employees. DART could simply add “gender identity” to the policy and be done with it. Instead, DART wants to add about 30 words, and LGBT advocates aren’t quite sure why.

DART’s Board of Directors will again consider an amendment adding transgender protections to the policy this afternoon. The proposal came about in response to the agency’s alleged discrimination against a trans bus driver. If the amendment is approved today, it would go to a final vote Tuesday, June 22.

But the wording of the amendment has raised concerns among LGBT activists. Rather than simply adding “gender identity” to its existing nondiscrimination policy, DART attorneys have also inserted several clauses indicating that the policy applies only “to the extent [it is] consistent with state and federal law.” Because neither sexual orientation nor gender identity is included in state or federal employment protections, the fear is that these clauses could be interpreted to mean the policy is moot.

“I think the concern that I have and that I expressed to them, is they’ve taken a lot of words to explain a simple concept,” said Rafael McDonnell, a spokesman for Resource Center Dallas.

Ken Upton, a senior staff attorney at Lambda Legal, agreed that the proposed policy is unnecessarily complicated.

“This is the kind of bad drafting that frequently gives our opponents something to cause mischief,” Upton said. “I’m disappointed, but not surprised, that DART’s attorneys couldn’t just write a simple policy using plain language.”

McDonnell said after discussing the wording of the policy with senior staff members at DART, he’s comfortable that the clauses aren’t designed to water down or counteract the LGBT protections. McDonnell said he believes it’s more likely that DART attorneys wanted to ensure that the policy — which already includes sexual orientation — can’t be used as grounds to compel the agency to offer domestic partner benefits.

“At the end of the day, whether they take 30 words or five words, assuming the board votes as we think it will, DART will be fully inclusive of the LGBT community,” McDonnell said.

Today’s meeting is at 5 p.m. in Conference Room C at DART headquarters, at 1401 Pacific Ave. in Dallas. I’ve posted the proposed amendments to the policy after the jump.

—  John Wright

Another petition for trans protections at DART

Yesterday I reported that Change.org had posted a petition calling on Dallas Area Rapid Transit’s Board of Directors to add transgender protections to its nondiscrimination policy. Now it looks as though Equality Texas has followed suit. Sign the Equality Texas petition by going here.

—  John Wright

Petition urges DART to add trans protections

Pamela Dunlop Gates was one of three board members appointed by the city of Dallas who voted to delay the decision.
Pamela Dunlop Gates was one of three board members appointed by the city of Dallas who voted to delay the decision.

Looks like someone has posted a petition over at Change.org titled, “Urge Dallas Area Rapid Transit to Add Gender Identity to Nondiscrimination Policies.” The petition had 126 signatures as of this morning. You can sign it by going here.

As we reported last week, DART’s Board of Directors voted 6-5 to delay a decision on adding transgender protections, after some members requested additional information from the agency’s attorneys. (Yes, the same attorneys who created this whole mess by sticking their noses in a transgender employee’s family court case.) The board will take up the matter again June 15.

Voting to delay the decision were DART board members Pamela Dunlop Gates, Bill Velasco, Bob Strauss, Ray Noah, Mark Enoch and Loretta Ellerbe. Interestingly, Dunlop Gates, Velasco and Strauss all represent the city of Dallas, which has included gender identity in a nondiscrimination ordinance for the last eight years.

Noah represents Addison, Highland Park, Richardson and University Park; Enoch represents Farmers Branch, Garland and Rowlett; and Ellerbe represents Plano.

Contact information is noticeably absent from board members’ bio pages on the DART website, but I’m told you can try to reach them by calling 214-749-3278.

—  John Wright

DART board votes down transgender protections, will consider them again in June

DART’s board of directors voted 6-5 tonight against adding transgender protections to the agency’s nondiscrimination policy, according to Rafael McDonnell, a spokesman for Resource Center Dallas who attended the meeting.

McDonnell said the DART board, acting as the committee of the whole, initially voted 6-5 to approve the proposal to add gender identity to DART’s nondiscrimination policy. But then one board member, Pamela Dunlop Gates of Dallas, switched her vote and asked DART attorneys to clarify definitions for “gender identity” and “genetic information,” another proposed addition to the policy.

McDonnell said Tuesday’s vote means the proposal must come back to the committee of the whole in June, after the attorneys come up with definitions. If approved by the committee of the whole, the proposal would then go to the regular board at a later date. McDonnell said a DART staff member characterized Tuesday’s negative vote to him as a “speed bump” or “a hiccup.”

“It doesn’t mean that it’s dead,” McDonnell said. “I wouldn’t even say that it means it’s on life support. It means it’s taking a little longer to go through the process. I’m disappointed in that. … I got up and told the board members, ‘I respect the fact that you have questions, here’s my phone number.’”

McDonnell also encouraged people in the LGBT community to get involved.

“We anticipated there would be some no votes,” he said. “I think if you live in the DART service area, you need to be contact your representative on the DART board and urge them to vote for it.”

The phone number for DART’s administrative offices is 214-749-3278. A list of board members by city can be found here.

The proposal to add trans protections to DART’s nondiscrimination policy came about after the agency was accused earlier this year of discriminating against a transgender bus driver.

—  John Wright

DART will vote on trans protections again today, but only for the second-to-last time

DartI heard rumors this morning that the Board of Directors of Dallas Area Rapid Transit might take a final vote tonight on a proposal to add gender identity to the agency’s nondiscrimination policy.

Those rumors are false, according to DART spokesman Morgan Lyons, who says nothing has changed about the agency’s timeline for adding gender identity to the policy.

Lyons said the board’s “committee of the whole” will consider the policy change at its meeting at 4:30 p.m. today. The committee of the whole, which Lyons compared to a city council work session, will vote on whether to forward the proposal to the regular board.

“That’s the way they have to go with policy items,” Lyons said. “It requires two separate meetings. There’s no slight of hand. It’s not on the [board] agenda. It will be taken up in committee of the whole and assuming an affirmative vote, referred to the full board.”

If the policy change is referred to the board, members will take a final vote during their regular meeting June 15.

Lyons said there will be no opportunity for public input on the policy change during the committee of the whole session tonight. However, there will be a general public comment period during the subsequent board meeting, which begins at 6:30 p.m.

While tonight’s vote isn’t final, I’d say it’ll be a pretty good indicator of the outcome, given that the committee of the whole and the Board of Directors are made up of the same people.

—  John Wright

DART committee to vote on trans protections

dartlogo.JPGA Dallas Area Rapid Transit committee is expected to vote Tuesday on a proposal to add gender identity to the agency’s employment nondiscrimination policy.

The proposed policy change came about as a result of DART’s alleged discrimination against a transgender bus driver.

Last year, DART attorneys sought to intervene in family court to oppose the employee’s petition for a gender-marker change.

The employee, who’s been with the agency for 25 years, began transitioning in 2003 and had sexual reassignment surgery about three years ago. The employee alleges that DART supervisors have at various times told she couldn’t have long hair, couldn’t wear a dress and couldn’t use women’s restrooms at the bus yard.

Dallas Voice articles about the alleged discrimination prompted an outrcy from the LGBT community, with activists speaking at several DART board meetings earlier this year.

If the policy change is approved by the Economic Opportunity and Diversity Committeee, it will proceed to the full board, which could take a final vote in June. Tuesday’s committee meeting will be at 3:30 p.m. in DART Conference Room C, on the first floor of the agency’s headquarters at 1401 Pacific Ave. in Dallas.

—  John Wright