Judge Sides With Foes Of Transgender Measure

Circuit Court Judge Robert A. Greenberg did not decide whether to allow a referendum.
Circuit Court Judge Robert A. Greenberg did not decide whether to allow a referendum. (Robert Alan Greenberg)
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By Ann E. Marimow
Washington Post Staff Writer
Thursday, June 12, 2008

A Montgomery County judge sided with opponents of broad new protections for transgender individuals yesterday in an initial ruling on a local referendum effort.

But Circuit Court Judge Robert A. Greenberg has not decided whether Montgomery voters will have a chance in November to accept or reject a law passed by the County Council in the fall that prohibits discrimination based on a person's gender identity.

Greenberg said yesterday that gay and transgender rights advocates seeking to block the referendum missed a critical deadline for challenging signatures on the petition calling for the vote, and he rejected their argument that the petition language was misleading. His ruling essentially disqualifies the challenge to a first batch of signatures and narrows the case to the validity of 6,200 other signatures.

The referendum campaign was prompted by the signature of County Executive Isiah Leggett (D) in November on legislation designed to protect transgender individuals from discrimination in housing, employment and public accommodations. Montgomery followed the lead of 13 states, the District, Baltimore and 90 other local jurisdictions that have banned discrimination against transgender people.

A coalition of community and religious groups rallied against the measure, concerned about how it would apply to facilities such as bathrooms and locker rooms.

Their group, Citizens for Responsible Government -- led by some of the people who battled the sex-education curriculum in Montgomery public schools -- blocked the law from taking effect in February by beginning the petition process. Elections officials cleared the way for a referendum in November when they certified more than the required 25,000 signatures, or 5 percent of the number of registered voters.

In response, Equality Maryland -- an advocacy group for gay, bisexual and transgender people -- recruited a dozen Montgomery voters to challenge the validity of the signatures and the wording of the petition approved by elections officials. The legal action was filed in March.

Greenberg agreed yesterday with elections officials that the initial challenge to the referendum should have been filed in February, 10 days after the first of two batches of signatures was certified, as state law requires. "To hold otherwise would allow members of the public to challenge virtually every decision at any time," he said.

Jonathan Shurberg, an attorney for Equality Maryland, said he was not notified of the initial certification. If the law does not require notice, Shurberg said, "How do you know you are supposed to act?"

Kevin Karpinski, an attorney for the elections board, said in this instance, "given the publicity surrounding it, those who were interested were on notice."

Shurberg and attorneys from Lamba Legal, a national gay rights organization, arrived at the historic red-brick courthouse in downtown Rockville with more than a dozen boxes filled with thousands of signature pages. Although the arguments were at times technical, the attorneys spoke to larger questions of the role of direct democracy in a representative government.

Montgomery voters last weighed in on a council initiative in 1994, when they upheld a funding structure for a controversial incinerator. A court invalidated a referendum in 1984 that was brought by a group opposed to the addition of sexual orientation to the county's anti-discrimination law.

Shurberg argued that those seeking to overturn a law through referendum must "strictly comply" with requirements spelled out in state election law because of the "drastic" effect of such an action. Maryland's election code requires that a petition signature include all elements of an individual's name as it appears in the voter registration rolls. If a resident uses his or her middle initial, for instance, the petition signature must also include either the initial or the middle name.

Karpinski argued that such a "hyper-technical interpretation disenfranchises a significant number of eligible voters."

Shurberg also challenged the validity of signatures apparently penned by one person. On a projection screen set up in the courtroom, he showed a page of five printed names without signatures that appeared to have been filled in by one individual. All but one of the names was certified by elections officials.

Karpinski said in his filing that the board is not required to hire handwriting experts and that its role is to verify that the names on petitions are those of registered voters.

Separately, Greenberg said there was no confusion about the language of the petition, which referred to the law as a "bill" but went on to say that it has been "enacted."

"No reasonable person could have been misled as to the status of the legislation," he said.

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