Ruling Clears Way for November Vote on Transgender Measure

By Ann E. Marimow
Washington Post Staff Writer
Friday, July 25, 2008

A Montgomery County judge cleared the way yesterday for voters to decide in November whether to keep a new anti-discrimination law that provides broad protections for transgender individuals.

Circuit Court Judge Robert A. Greenberg sided with opponents of the law, ruling that advocates for gay and transgender rights missed a critical deadline for challenging the county Board of Elections, which certified a petition to put the law to a vote on the November ballot.

Greenberg agreed with a key element of the advocates' argument: Elections officials miscalculated the number of signatures required for a referendum on the measure, he said. But Greenberg concluded that the challenge was filed "too late."

Jonathan Shurberg, an attorney for Equality Maryland, the gay and transgender rights group, said he intends to appeal the decision "vigorously and promptly." "We were right," he said. "The question is one of timeliness, and we don't believe the judge rightly applied the law."

Kevin Karpinski, an attorney for the Board of Elections, said county officials were following guidelines established by the state election board when they set the mark for certification at 25,000 signatures, or 5 percent of registered voters. That number did not include registered voters listed as "inactive" because they have not participated regularly in elections.

Shurberg argued, and the judge agreed, that the county should have included 52,000 inactive voters in its total, increasing the number of signatures needed to reach the 5 percent mark.

But the judge said the challenge should have been filed by Feb. 20, the day the board verified the first batch of signatures. The request for judicial review was filed March 14.

"In a pre-election context, time is of the essence," Greenberg wrote.

Montgomery joined the District, Baltimore and 90 other jurisdictions last year in banning discrimination against transgender individuals in housing, employment and public accommodations. The measure was passed unanimously by the County Council and signed into law by County Executive Isiah Leggett (D).

Opponents, led by the group Citizens for Responsible Government, blocked the law from taking effect by collecting signatures to force a referendum. The group is concerned that the law would allow a cross-dressing man, for instance, to use the women's locker room.

Equality Maryland challenged the validity of the petition signatures. Greenberg yesterday rejected Shurberg's argument that election law requires an individual to sign a petition exactly as his or her name appears on the voter registration rolls. That requirement, Greenberg said, "would lead to absurd results, and potentially culminate in the disenfranchisement of otherwise eligible voters."

Karpinski had argued that the board's role in reviewing signatures is to verify that the names are those of registered voters, not to act as handwriting experts.

Greenberg said that he agreed in general but that election officials must show some discretion. Shurberg highlighted several signatures, for instance, that appeared to be written by one person.

"While the board does not consist of a group of handwriting experts, its role is something more than that of a bean-counter," Greenberg wrote.

The case has attracted national attention: Lambda Legal, a national gay rights group, is assisting Equality Maryland, and Alliance Defense Fund, a socially conservative legal fund, is helping Citizens for Responsible Government.

Amy Smith, litigation counsel with the alliance, said yesterday that "a political activist group should not be able to disenfranchise the voters of an entire county."

Council member Duchy Trachtenberg (D-At Large), who introduced the measure, said the law was the result of a democratic legislative process that had included public discussions. "Even if this does go on the ballot," she said, "I firmly believe that the voters of Montgomery County will reject discrimination."

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