Transgender Law Ruling Is Expected This Week

By Ann E. Marimow
Washington Post Staff Writer
Tuesday, September 9, 2008

Maryland's highest court is expected to rule this week on whether Montgomery County residents will vote in November on a new transgender rights law, and its decision could hinge on whether advocates of the law missed a critical deadline.

Gay and transgender rights supporters urged the Court of Appeals yesterday to overturn a ruling that they failed to meet the deadline to challenge the county Board of Elections, which certified a petition to put the law to a vote on the Nov. 4 ballot.

County election officials said proponents of the anti-discrimination law missed the 10-day window for filing a challenge and that the Circuit Court decision should stand.

The seven-judge panel is expected to act quickly because state election officials are required to certify the ballot language by Wednesday.

Montgomery followed 13 states, the District, Baltimore and 90 other jurisdictions last year in prohibiting discrimination against transgender individuals in housing, employment and public accommodations. The bill had the unanimous support of the County Council and was signed into law by County Executive Isiah Leggett (D).

The measure sparked an outcry from a network of parents and members of religious groups who were troubled by how it would apply to such facilities as health-club locker rooms and restrooms. Opponents of the law, led by the group Maryland Citizens for Responsible Government, blocked the measure from taking effect by collecting signatures to force a referendum.

The hour-long session in a wood-paneled appeals courtroom in Annapolis yesterday was dominated by debate over the deadline for filing a legal challenge to the referendum. Kevin Karpinski, an attorney for the elections board, said the clock started ticking after election officials determined the number of signatures needed to qualify for the ballot.

Jonathan Shurberg, an attorney for Equality Maryland, a gay and transgender rights group, said his clients were never formally notified of the board's finding and that the 10-day period began much later, after election officials signed off on the referendum in March.

Several of the red-robed judges pressed Karpinski about why the Board of Elections did not notify the public of its findings, and they expressed disbelief that there were no updates on the board's Web site. Chief Judge Robert M. Bell called it "rather unusual" to expect interested voters to monitor each incremental step before final certification. Judge Mary Ellen Barbera said the board's practice seemed to put "an unreasonable burden" on interested voters.

Karpinski said there is no legal requirement for notification and that it is incumbent on voters to track the process. After the hearing, Samuel Statland, president of the Board of Elections, said that formal notification was unnecessary because of the high-profile signature-gathering effort and coverage in the media.

The court also must decide whether to uphold the Circuit Court ruling that election officials miscalculated the number of signatures required for a referendum on the measure. County officials set the bar for certification at 25,000 signatures, or 5 percent of registered voters. Shurberg argued, and the lower court judge agreed, that the total should have included 52,000 "inactive" voters, who have not regularly participated in elections.

Ruth Jacobs, president of Maryland Citizens for Responsible Government, said the group played by the rules set by the Board of Elections, only to have the rules challenged by proponents of the law.

"To come in at the eleventh hour with a technical argument disenfranchises voters who signed the petition," said Jordan W. Lorence, senior vice president of the Alliance Defense Fund, a socially conservative legal fund that is helping opponents of the law.

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