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LGBT North Dakotans look ahead after discrimination law fails

GRAND FORKS -- Reachel Benson sits in a chair in the living room, wearing a bright pink T-shirt and long hair draped across her shoulders. She tells the story of growing up. Animated at times, her voice becomes louder, more forceful -- her hands ...

Reachel Benson told her story about growing up Friday, February10, 2017 at her home in Grand Forks, N.D. (Jesse Trelstad/Grand Forks Herald)
Reachel Benson told her story about growing up Friday, Feb. 10, 2017 at her home in Grand Forks, N.D. Jesse Trelstad / Forum News Service
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GRAND FORKS - Reachel Benson sits in a chair in the living room, wearing a bright pink T-shirt and long hair draped across her shoulders.

She tells the story of growing up.

Animated at times, her voice becomes louder, more forceful - her hands in motion as she recalls trying to figure out who she was.

"No one was helping me. No one was giving me what I needed," she said. "I wanted seriousness. I wanted something like that. I wanted someone to hold my hand and guide me. And none of that happened."

Benson, now 28, was born male. Today, she's a transgender woman.


Benson's first inkling that she was different came during her grade school years, when she caught herself admiring the outfits in a children's cartoon. Her life over the next decade was fraught with hardship-including multiple moves, the aftermath of her parents' divorce and difficulty fitting in at school. She remembers her mother's boyfriend laughing at her when she said she wasn't comfortable with her masculinity.

"I look back and I go, 'I wish I was different,'" Benson said, lamenting she wasn't born a girl. "It's hard for me to say that, honestly."

Benson is disappointed once again at the failure of North Dakota House Bill 1386, legislation that would have specifically banned discrimination against LGBT individuals in the state on matters from employment to service at a restaurant, with certain hiring and admission exceptions included for religious groups. The bill failed 22-69 in the North Dakota House on Feb. 10.

Its failure comes at a time of heightened concern for LGBT people. Theresa Marshall is a fellow transgender woman and founder of Gender Friendly Grand Forks, a local advocacy group dedicated to creating a community for transgender residents. She said she believes the recent election of President Trump has emboldened opponents of the LGBT community.

Members of Gender Friendly have become worried about holding events that make them visible, she said, citing concerns about their safety. Marshall said she's seen an uptick in run-ins like the one she experienced at a Fargo-area gas station, where she stopped to use the women's restroom and caught a glare from two employees.

"I'm waiting for somebody to open the door and grab (me) by the shoulder," she said of using the restroom now. "I'm definitely more on guard."

Marshall also believes HB 1386 could have prevented her from being fired recently from her job at a local restaurant-or at least made it illegal under state law. She was fired, she said, after telling her employer she would complain to the U.S. Equal Opportunity Employment Commission if certain behaviors at work didn't stop. She said continual male references were made and that her supervisor expressed discomfort because she used the women's restroom, despite the fact she legally changed her gender to female.

She said the EEOC is investigating her complaint.


'It's a step forward'

There are resources available for LGBT persons.

For example, Grand Forks passed measures in 2013 that protect LGBT persons against discrimination in city housing and employment.

Margaret Jackson, an associate professor at the University of North Dakota's law school, said LGBT people should feel encouraged to file employment discrimination claims with the state Labor Department and the EEOC. The EEOC's website says it interprets federal law to offer employment protections for LGBT people, and Jackson said federal courts have begun to recognize similar employment protections under existing federal law.

But despite court rulings, Jackson said the federal appellate court for North Dakota still hasn't followed suit, adding that federal employment discrimination laws don't extend to companies with fewer than 15 employees.

Michelle Kommer, the state's labor commissioner, pointed out her department can pass along only employment discrimination issues to the EEOC-not other issues, such as housing, for instance. Those would be referred to the corresponding U.S. department, which Kommer says is not as active in following up on LGBT claims.

"The suggestion that, 'Hey, this is already covered' is accurate only for employment," Kommer said.

And Jackson said the lack of laws on LGBT rights is a problem in itself.


"(It) severely reduces the ability of individuals to rely on this protection," Jackson said. "Most people don't want a lawsuit, they want laws that protect them from having discrimination happen at all."

'Put our money where our mouth is'

For now, the future of LGBT rights is unclear in North Dakota. Rep. Joshua Boschee, D-Fargo, the primary sponsor of HB 1386, said LGBT advocates will need to discuss their next move - do they introduce the bill again in two years or do they move to get it on a statewide ballot.

Though the bill already has been considered four times, Boschee still cautions against putting it to a public vote.

"It's something that would have to have some really deep consideration by stakeholders and folks involved," said Boschee, the state's first openly gay legislator. "Our country has had a long history of folks fighting for civil rights, but putting people's rights on a ballot is not a road we want to go down."

Still, others see a ballot initiative as an important possibility. Kyle Thorson, a Grand Forks Pride organizer, believes North Dakotans would stand behind it.

"I believe a majority of North Dakotans would be willing to support the measure, and if the Legislature isn't willing to acknowledge it, we just put our money where our mouth is," he said.

State Rep. Rick Becker, R-Bismarck, disagrees, suggesting the public's will isn't there to pass the law.

He said he voted in favor of similar legislation two years ago but since has grown concerned with the bill's language and voted against it this session.

"People like to see black and white," he said. "And they say, 'You supported the gay agenda two years ago, and now you hate homosexuals.' That's not it at all."

Becker says he's interested in equal protection under the law but said he's become more concerned about some of the potential effects of the bill. He questioned the burdens the law might place on those with strong religious beliefs and expressed reservations over language referencing "actual or perceived" gender identity. He worries about encouraging a philosophy that suggests "there is no such thing as gender."

"It becomes 'triggering' to assume that someone was a male or female, and I don't want to get to a place in society where we're so politically correct where we can't assume (someone is) Caucasian or African American," he said. "(A situations where) we can't assume they're male or female because of the ever-present risk of offending."

State Rep. Mike Lefor, R-Dickinson, said employment protections already exist through the EEOC.

"Not everything in our society can be solved by creating a new law," he said, adding "dialogue" might be a good solution.

"Small businesses should have every right to serve who they want and who they don't want," he said. "If you're a bigot or a racist, you probably won't be in business very long."

Pressed on what an LGBT person should do if they were to be refused housing, Lefor said he didn't have an immediate answer.

"I don't know much about that at all," he said. "My general comment is that I don't want anybody to be discriminated against. As far as some of those areas, that's where dialogue comes into play."

Meanwhile, Marshall said the law isn't about anything more than recognizing LGBT people's rights.

She asked others to imagine waking up in a place where they could be denied service-lodging, accommodation, the works.

Passing the law is as important as anything else, Benson said, because it signals support for LGBT people and the difficulties they face.

"It's a step forward," she said. "Or maybe two steps forward, especially for this state."

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