New gender-identity discrimination law raises big questions

The Oregon Legislature made some changes to discrimination law that I believe could create a potential hazard for Oregon businesses, even acting without deliberate malice toward any person. Now, I’m not an attorney and would not presume to give legal advice to anyone, but I think it would be instructive to take a few moments to review the changes in law with regard to gender-identity discrimination. Regardless of how you feel about the law itself, or about the sexual orientation as a general issue, there are some parts to the law that could make you revisit some of the public accommodations you make as part of normal business activity, to protect yourself against lawsuits which may erupt from these rewritten statutes. Of course, I would certainly recommend getting your attorney’s advice before acting on my reading of the new statutes.

First, let me explain that I have edited the citations of law below, in order to to focus on the sexual orientation provisions. Where you see an ellipsis, or bracketed insertions, you are seeing my edits. I have tried to maintain the context with regard to sexual orientation, but you can read the complete versions of each statute at http://www.leg.state.or.us/07orlaws/sess0100.dir/0100.htm

Now, here is the vulnerability I see, in a nutshell: in protecting the status of self-determined gender identity, the Oregon legislature has created a channel through which conflicts between patrons of your public business can strike at you directly. Let’s agree to the obvious: there are some people who will be offended by those who choose to identify themselves, by dress or actions, with a gender they were not born to. Let us also agree that there are some people who will provoke that offense. Now, consider this scenario: a person is using their gender-assigned restroom in your business, and encounters a person who is not born to that same gender. Some in that position will be unaffected, but others will consider it a significant invasion of privacy, and will blame you for it. You, as the business owner, are specifically enjoined from demanding that any person use either one restroom or another, because that is a discriminatory act under the protection of public accomodation. The result: one patron may sue you for failure to protect them from the invasion, while the other may sue for discrimination in public accommodation. As far as I can tell, there is no statutory provision protecting the business from such privacy-issue lawsuits.

I see only one restful solution: conversion to single-occupancy restroom facilities, thus granting privacy to those who would be offended, and public accommodation to those whose gender choices are now a matter of protection. Perhaps that should figure into your next remodelling or construction project, as a matter of prudence.