Freund, Howell discuss history of Title 34,
gay-inclusive 1973 D.C. non-discrimination law
Craig Howell on enforcement of Title 34
ENACTING TITLE 34
DURING THE WALTER WASHINGTON ADMINISTRATION
Remarks by Eva Freund for the Rainbow History ProjectAPRIL 15, 2004
Good evening. My name is Eva Freund.
The excitement we have all felt these last months with cities and counties in California, Oregon and New York issuing same-sex marriage licenses helps us place in context an earth-shattering local event that occurred just over 30 years ago. By the early 1970's, only 1 or 2 localities in the United States had passed ordinances that protected gays and lesbians from discrimination in employment or housing -- or anything else for that matter. Thus, the decision to try to get such legislation passed in the District of Columbia with its' then Presidentially- appointed Mayor-Commissioner, was viewed by many as a no-win situation.
During the reconstruction period, a non-discrimination law was passed that forbid racial discrimination in public accommodations. This law had been upheld in the Thompson's Restaurant case in 1953 and was pretty much ignored thereafter. Then in either 1971 or 1972 Lynn Scholz and other Council staff members began the background work to replace the earlier law. It was Lynn Scholz, a key staffer for Councilman Tedson Meyers who invited our community to join her in this effort.
Title 34 was strictly a local effort. There was no HRC, Lambda Legal Defense Fund, or NGLTF to provide either money or support for legal teams and grass-roots organizing.
By the time I became involved with the entity known as Title 34, negotiations with key Council staff were already underway. My involvement came about when I was approached by members of the Gay Activists Alliance and asked to provide my support and that of the lesbian community.
At that time the lesbian community did not have an infrastructure that would lend itself to supporting this effort. However, DC- NOW (the DC Chapter of the National Organization for Women) did have the necessary infrastructure and I was an active member of the chapter as well as being on the Board of Directors. The chapter agreed to support the effort to get this bill passed through the two readings required by the legislative process.
At early strategy meetings, it was agreed that the gay men and the student groups would do the lobbying and if needed, the sit-ins. They would do whatever was needed in order to meet with the staff of all the Council members. Meanwhile, the women from DC-NOW were sending post cards to members of the Council. This was not an insignificant endeavor when you consider that DC-NOW had 100+ women attending each monthly meeting and we distributed and collected these postal cards at each meeting. I then mailed the postal cards. In addition, a number of the women had day jobs as Public Relations Directors and Communication Directors of major NGOs and they wrote and delivered press releases in support of the Title 34 activities.
During this period, I was contacted by Sharon Campbell of the Women's Legal Defense Fund. She explained that the Defense Fund had just completed a survey identifying the severity of financial and credit discrimination against women in DC. She was trying to draft legislation making this financial discrimination illegal. I suggested that we might get this covered by adding it to the public accommodations section of Title 34.
At the first reading, I presented supporting testimony, on behalf of DC-NOW. At the time I wrote my testimony I had a draft copy of Title 34 and I was living in a house with an EEOC analyst and an EEOC lawyer. Both of these persons had an interest in the quality of my testimony. I was very pleased that they suggested only some minor changes in wording. My testimony included the usual statements of support, recommendations to change the draft text, and a second testimony included wording to include financial and credit transactions as part of the public accommodations section. Both testimonies are available on the Rainbow History web site.
Testimony was given in Council chambers of the old District Building and now known as the Wilson Building (Named after former Councilman John Wilson) on Pennsylvania Avenue across from the National Theatre. The Council voted in the affirmative. Only after the second reading would it become law, if not undone by the US Congress. After the session was adjourned we exited the chambers into the hallway only to be confronted by TV cameras and microphones. When I, unexpectedly, was asked to speak into a microphone I uttered a few pithy comments. Had I anticipated the cameras and microphones I certainly would have prepared a few sound-bites.
A number of weeks later the Council held their second reading and again they voted in the affimative. Yes, the mayor signed the legislation.
Craig Howell will describe events following the signing.
ENFORCEMENT OF TITLE 34
DURING THE WALTER WASHINGTON ADMINISTRATION Remarks by Craig Howell for the Rainbow History Project
APRIL 15, 2004
I want to thank the Rainbow History Project for inviting me to speak this evening about the immediate aftermath of the enactment of Title 34, the direct predecessor of the Human Rights Act of 1977, in the fall of 1973.
I attended my first meeting of the Gay Activists Alliance (GAA) in Vice President Bob Carpenter’s living room on the fourth Tuesday of October, 1973. This was after Title 34 had passed its first reading by the appointed City Council but before Mayor-Commissioner Walter Washington had decided whether to sign it. The bill was more than a little controversial, not only because of the inclusion of sexual orientation as one of the 15 protected categories, but because the Council had adopted a very narrow “business necessity” exclusion clause.
Dr. Marjorie Parker, chair of the Council committee considering Title 34 (and a Republican, like most of her Nixon-appointed colleagues), had prepared a committee report saying that under the “business necessity” clause, a business could be allowed to discriminate in employment, public accommodations, housing, education, or credit only if the business would have to shut down otherwise. This was not what the powerful Metropolitan Board of Trade wanted. They preferred a definition of “business necessity” that would allow all sorts of discrimination as long as a non-discrimination policy would cost the business any money.
My new friends at GAA were concerned that having lost this battle within the Council, the Board of Trade would try to recoup by persuading Walter Washington to veto the entire bill so that they could refight this same battle back in the Council. To his credit, the Mayor-Commissioner wanted no part of that strategy, and signed Title 34 in November -- albeit without ceremony. I believe GAA wanted him to make a very public Big Deal over a landmark piece of legislation that could set an example for the entire country.
Title 34 became effective on December 13, 1973, as current GLAA Treasurer Bob Summersgill mentioned at a GLAA meeting a couple of days ago. Under the system established by an Executive Order from LBJ, the powers of the appointed Council and Mayor-Commissioner were no greater than those previously exercised by the Presidentially-appointed District Commissioners. Since the District government was unable to pass true laws but could only enact “police regulations,” there was no Congressional review period for Title 34.
1974 saw the first elections for Mayor and Council under the freshly-minted Home Rule Charter. One of the issues we included in the questionnaire GAA prepared for the Mayoral candidates was whether each of them would appoint an openly gay person to the 15-member Human Rights Commission that Title 34 had established to hear cases once the Office of Human Rights had issued a finding of probable cause upholding a plaintiff’s allegation of illegal discrimination.
Since Walter Washington wound up with a GAA candidate rating of just one-half point, based solely on his signing Title 34, it is safe to say that he made no such commitment. In fact, I doubt that he even filled out his questionnaire, since he did do his best throughout the campaign to ignore the existence of the gay community. Indeed, one of our major complaints against Walter Washington was his consistent refusal during his tenure as appointed Mayor-Commissioner to meet with us despite our repeated entreaties.
Undaunted by Washington’s victories in the September primaries and the November general elections, and convinced that the advent of home rule would induce the now-elected Mayor to mend fences with us, GAA joined with other gay community organizations to lobby him to appoint a gay member to the Human Rights Commission. The community soon developed a list of six worthy candidates for the Mayor to choose among. I can’t recall the entire list, but pending discovery of actual documentation, I believe it included the following:
- Nancy Tucker, editor of the Washington Gay Blade;
- Dr. Franklin E. Kameny, who needs no introduction;
- Rev. Larry Uhrig, pastor of the Metropolitan Community Church;
- Bob Carpenter, Vice President (soon to be President) of GAA.
I had thought Deacon Maccubbin might have been included on the list, but if he was, he has no memory of it today. Another possible candidate might have been the Rev. Frank Robertson of All Souls Unitarian Church.
In early 1975, we encouraged a barrage of letters and phone calls urging Mayor Washington to choose one of these six, and I believe we approached our many friends on the new Council to put in a good word with the Mayor on our behalf. Our efforts soon paid off. Just before I left for a vacation in Hawaii in late March, I received a call from Bob Carpenter, who told me with great pleasure that he had just learned from one of those proverbial “reliable sources” that he would be chosen. But when I returned from this vacation, I learned to my surprise that the Mayor had instead chosen Dr. Kameny. Nobody complained, least of all Bob Carpenter, as we were thrilled by what we considered a breakthrough victory with Walter Washington.
Soon thereafter, I believe, the Mayor agreed to his first-ever meeting with a delegation from the gay community to discuss a broad range of issues, including some related directly to the enforcement of Title 34 (or, more precisely, the lack thereof). More on these issues later. But let me note here that what we thought was the first of our major victories with Walter Washington proved instead to be pretty much our last. He never again knowingly appointed a gay man or woman to any board, commission, or other position within his Administration. Word was that some of the District’s homophobic ministers had come down hard on the Mayor after the appointment of Dr. Kameny, and that the Mayor had promised never to do such a dastardly deed again.
Two problems quickly surfaced that undermined whatever confidence we might have ever had in the Administration’s commitment to vigorous enforcement of Title 34. One was the development of a crippling backlog of cases pending before both OHR and the Commission on Human Rights. The other was OHR’s refusal to invoke Title 34 against the notoriously homophobic local chapter of Big Brothers.
It’s not entirely clear how a massive backlog of discrimination cases developed so quickly--seemingly from the moment Title 34 was enacted. Presumably it inherited this backlog from the Department of Human Rights that was in charge of enforcing the District’s non-discrimination law (such as it was) before Title 34. I was not even aware of the existence of this agency until the Rainbow History Project compiled a chronology of events related to Title 34, based on contemporary issues of the Blade, that referenced it. Complainants routinely had to wait years before OHR would issue a finding of probable cause, and then yet more years before the Commission would hear their case. OHR Director James Baldwin (no relation to the novelist) said all the right things about how terrible this was and how he was committed to eliminating the problem--yet we saw no visible progress at any time during the Washington Administration. We attributed the persistence of the backlog to Mr. Baldwin’s own administrative incompetence, the Mayor’s refusal to demand better performance from his longtime political ally, and an inadequate budget for OHR and the Commission.
I want to turn now to our other major grievance with the Washington Administration, OHR’s failure to uphold Title 34 against the Big Brothers of the National Capital Area (BBNCA). The case revolved around a volunteer employee named Ricky St. Clair, who was fired after his supervisors learned of his homosexuality. It quickly became a cause celebre because Big Brothers made no attempt to hide their blatant bigotry. At that time the national federation of Big Brothers organizations boasted of its exclusionary policies forbidding the use of gay men either as employees or as volunteer Big Brothers. Cases similar to Ricky St. Clair’s surfaced in a number of other cities with gay rights ordinances in the mid and late 70s.
Once OHR got around to hearing Mr. St. Clair’s complaint, BBNCA argued that it was exempt from the coverage of Title 34 on two grounds. First, it contended that since Mr. St. Clair was not being paid, he was technically not an employee and his service could be terminated for any reason whatsoever. Second, BBNCA declared that since their operations were being funded under a federal grant, they were subject only to federal rules and regulations, and not to those promulgated by the District of Columbia government.
Our community was appalled by the loopholes Big Brothers was trying to blow into Title 34. If volunteers could be dismissed by any organization solely because they were gay, that precedent would not only constitute an injustice against the victim of discrimination, but would also deprive the city of much-needed contributions offered by men and women who were both qualified and altruistic. And since so many District organizations received federal funds and grants (then as now), depriving gay men and women working at such establishments of the protections afforded by Title 34 was both morally and legally unacceptable.
I am not a lawyer and cannot adequately relate all the legal arguments and maneuverings that went into the St. Clair case. At some point I hope Rainbow History can get a detailed oral history from Mr. St. Clair’s lawyer, Joe Stewart, who played a central role in many, many gay rights battles in the mid-1970s. Suffice it to say that sometime in 1976 (I believe, but cannot verify) OHR Director James Baldwin ruled in favor of Big Brothers and dismissed the case. All efforts to get him to reconsider his decision were rebuffed.
It didn’t help our confidence in Mr. Baldwin’s objectivity when we learned that his boss, Mayor Washington, himself was on the Board of Directors of Big Brothers of the National Capital Area, and presumably had approved of their openly homophobic policies. At the one meeting our community had with him, we urged the Mayor to denounce BBNCA’s prejudice and to resign from their board. He responded by asking whether it would be all right if he just quit without publicly saying why. I would have been happy to get him off the board regardless of his reasons, but I don’t think he ever did, at least while he was still Mayor.
Between the backlog and the Big Brothers case, most of us in GAA and other community organizations concluded that the only way to get rid of Baldwin was to get rid of his boss, Walter Washington, and replace him with a solid friend of our community like Marion Barry -- which of course we did, very much to everyone’s surprise (including our own), in the September 1978 Democratic primary. One of Mayor Barry’s first personnel moves was to ease Baldwin out of OHR into another Administration job, a solution we found very satisfactory.
Before continuing, let me give you a very brief report on what ultimately happened with Big Brothers. Our grievances with BBNCA came to a boil time and again over the next 15 years or so, but they would not budge. The national federation changed their policy to allow each chapter the right to accept gay men as Big Brothers--nothing. Big Sisters adopted an explicitly pro-gay position--so what else is new? We picketed their fund-raising dinners and were ignored. We tried to get some leverage on them in the mid-1980s by holding up the District government’s transfer of an old police precinct station to BBNCA unless they abandoned their homophobia. I had a long one-on-one conversation in 1986 with their general counsel, Carl Rowan, Jr., that left me in a white heat because of his incredible prejudice. Most local news media usually ignored the continuing controversy, most likely because one of the bigwigs at WUSA-TV was on the BBNCA Board of Directors; not surprisingly, Channel 9’s own coverage was often grotesquely biased. The BBNCA Board finally surrendered in 1989, with remarkably little fuss, after OHR ruled against them in a new case filed by a local gay man who wanted to serve as a Big Brother. BBNCA had apparently grown tired of the trouble we made for them, and they finally let the mother or guardian of the Little Brothers decide whether to accept a gay man as a Big Brother for their child -- a common-sense solution they should have adopted years earlier.
Let me turn now to two subjects related to our community’s use of Title 34 that did not primarily involve frustration with the Washington Administration. The first subject is the carding controversy. The second topic I’ll discuss is our testing of several non-gay clubs to insure that they allowed same-sex dancing.
Our community used the leverage provided by our new civil rights ordinance as a powerful weapon to fight the blatant racism, sexism, and ageism being practiced by too many of the District’s gay bars through discriminatory carding and admission policies. Some bar owners were openly proclaiming that it was bad for business to admit too many blacks or women at one time. Their bouncers were instructed to impose a de facto quota by demanding more proof-of-age IDs from women and black patrons than from whites.
Efforts to fight this carding policy dated back, I believe, to 1970, the heyday of the short-lived Gay Liberation Front, and had continued ever since. Full-scale consumer boycotts were directed against the recalcitrant bars, and several picketing demonstrations were organized. Title 34 gave us an opportunity to file complaints with a local and presumably sympathetic civil rights agency, the Office of Human Rights.
GAA and other community groups found an effective tactic was to station observers near a bouncer and take notes on who was being admitted with little or no carding and who was being asked to provide more IDs than they had. Our observers then had the documentation and the legal standing to file complaints of racial discrimination against the offenders with OHR. (One of the nicer points of Title 34 was that you didn’t have to be the direct victim of discrimination to file a complaint.) A finding of probable cause against a bar could result not only in stiff fines but in loss of their liquor license, although that process could drag on for years because of OHR’s backlog. Some bars were wise enough to throw in the towel and stop discriminating, but some resisted and were ultimately shut down -- the Grand Central Station, a superbar at New Jersey and I Streets in Southeast, being the most prominent example that I can recall. I took great pride in that closure, since I had been one of the observers there.
I commend the Rainbow History Project for discovering the deposition that Patricia Price (a.k.a. Pat Kolar), editor of the Blade, filed in July 1976 about what she observed at the Grand Central. It makes a nice counterpoint to the front page of the December 1973 Blade (also dug out by Rainbow History), which announced the enactment of Title 34 at the top of the page and the imminent opening of the Grand Central at the bottom. Grand Central representatives “expressed a willingness to be responsive to the needs and desires of the gay community,” according to the Blade story. Not!
Despite these concerted efforts, the carding problem persisted not only during the Washington Administration but into the Barry Administration. It was not finally resolved until the Council passed legislation in 1984, at the insistence of a number of community groups, forbidding liquor license holders from demanding more than two forms of ID as proof of age.
Let me mention that another discrimination problem we had with some bars in the 1970s was that some of them refused to admit drag queens as customers. We argued that this was a violation of Title 34’s ban on discrimination based on personal appearance, one of the 15 protected categories. Ever since then, we have repeatedly (and successfully) invoked the “personal appearance” section of the Human Rights Act of 1977 to defend our transgendered residents, most famously in connection with the Tyra Hunter case. Fortunately, the “personal appearance” clause has made it unnecessary for us to seek an amendment to the Human Rights Act barring discrimination based on “gender identity or expression,” as several jurisdictions have done in recent years. It is highly unlikely that such an amendment could have survived Congressional review in these highly charged times.
The other topic I wanted to mention was GAA’s project of going around to several dance clubs catering to heterosexuals to make sure they allowed same-sex dancing, as was required under the public accommodations provisions of Title 34. Several of us would go to a club and start dancing as same-sex couples; if the managers told us to stop, we promptly told them their policy was illegal. If they tossed us off the dance floor anyway, we had a strong complaint to file with OHR. On some occasions, I remember that we invited OHR’s own investigators to come along with us and witness for themselves what happened.
Fortunately, I don’t think there were very many recalcitrant clubs, no doubt because our complaints, if upheld by OHR, might result in the loss of their liquor licenses. One condition of just about every settlement that we insisted on was that the offending club would have to post a prominent notice at its entrance announcing they do not discriminate against any patron on the grounds of sexual orientation.
More generally, GAA carried on a campaign in the mid-1970s to enforce the provision of Title 34 requiring all employers, places of public accommodations, housing agents, and credit and educational institutions to post public notices of non-discrimination and compliance with Title 34. All 15 protected categories were listed on these posters, which were prepared, funded and distributed by OHR. We made considerable progress in getting these posters into circulation, but our efforts were impeded by OHR’s own staffing and financial limitations.
We met considerable resistance from the Metropolitan Police Department when we approached them about putting up such posters. MPD officials told us that they were only required to comply with federal civil rights laws, at least when it came to announcements of their own non-discrimination policies. They said they would comply with our requests only if the Mayor’s Office ordered them to do so. Out of this bureaucratic resistance came GAA’s demand for a Mayoral Order directing every D.C. government department and agency to list all categories protected under D.C. law (first Title 34, later the Human Rights Act of 1977) whenever they published their non-discrimination policies. Mayor Washington refused to promulgate such an Order, but Mayor Barry did so in February 1980. I’m glad to say that Mayor Williams re-issued that Mayoral Order in August 2000 when GLAA found evidence that Barry’s old directive was being ignored by too many agencies.
Before concluding, I want to answer a natural question well known to us grizzled veterans but perhaps not to everyone: Whatever happened to Title 34? Or, in the alternative: How and why did the Human Rights Act of 1977 get into the picture?
In the mid-1970s, there was a (non-gay-related) case in a District court challenging the applicability of Title 34. It seemed likely that the court would rule that the enactment of Title 34 exceeded the very limited “police regulation” powers granted the pre-Home Rule District government, as I mentioned earlier. Indeed, the Chairman of the appointed Council had voted against Title 34 in 1973 precisely on this very concern.
Alerted to this threat, Councilmember David Clarke, who chaired the Judiciary Committee, introduced the Human Rights Act of 1977 as a duplicate of Title 34 to bring it up to full legal status. Unfortunately, the introduction of this legislation coincided with the successful referendum overturning the gay rights law in Dade County, Florida. At-Large Councilmember Douglas Moore tried to demagogue his way into becoming DC’s answer to Anita Bryant by dropping all protections for gay men and women.
Our community insisted that the Council re-enact Title 34 as a new law without amending so much as a comma; now was not the time, we argued, to consider changing any substantive provisions of the law. We thought that presenting the need to pass a new law as a mere technicality would provide an excuse for any wavering Councilmembers to resist the anti-gay amendments. Ultimately, Doug Moore’s grotesquely homophobic rhetoric was roundly rejected by all but one of his Council colleagues (the only defection being Ward 7’s Willie Hardy), and the law went into effect, and happily remains in effect to this day.
Thank you.