Sen. Randolph introduced SB 122 which would mandate certain minimum standards for a patrol car camera policy that a law enforcement agency would be required to adopt if it chooses to install video cameras in its patrol cars. The policy must “(1) require all traffic stops to be recorded; (2) establish a procedure to follow if the recording system malfunctions; and (3) require a law enforcement officer to document the reason why a traffic stop was not recorded or was not recorded in its entirety.”

At least for our local agencies, I think cameras would help police officers more than they hurt them. I’ve come across a number of accusations of wrongful acts by police officers, and very often those accusations are a function of someone who is unhappy that they were caught committing a crime. However, the fact that the state is leaving the cameras optional but then imposing a level of bureaucracy if the local agencies purchase the cameras creates a disincentive for their use. In my mind, if the State is going to dictate how the cameras must be used, then the State should pay for them.

A narrower concern I have is that the statute should define “traffic stop.” It defines “law enforcement agency” and “recording system” but not “traffic stop.” If the officer gets out of his car to help a motorist already stopped by the side of the road, is it a traffic stop? If the officer chases a bank robber who abandons his getaway car and the officer gets out of his car to pursue the robber, is it a traffic stop? If the officer stops a pedestrian walking alongside the road, is it a traffic stop?

The smallest room seems poised to be the biggest issue for the Indiana General Assembly this year. I already posted about Sen. Mrvan’s bill seeking to make certain private bathrooms in retail establishments available to people who suffer from Crohn’s Disease and the like.

Sen. Holdman’s SB 100 concerning sexual orientation, gender identity and religious freedom (see my write up here) contains provisions which I described as:

7. The chapter permits separate restrooms, shower facilities, dressing facilities based on sex, sexual orientation, or gender identity. The attorney general will defend charter schools, public schools, local governments (and the State) against lawsuits based on allegations that their policies with respect to restrooms, shower facilities, and dressing facilities are discriminatory.

And, now, I see Sen. Tomes has introduced SB 35 entitled “single sex facilities” which seems primarily targeted at transgender people. But, in practice, its larger impact may be to turn women at college bars into criminals when they use the men’s bathroom because of the shorter line. The bill has two main provisions – one for schools, and another for public facilities.

In schools, Sen. Tomes’ bill requires that any “student facility” (being a locker room, restroom, or shower room designed for use by multiple students at the same time) be designated as either male or female and requires that a student facility for females be used by only students of “female biological gender” and one for males be used by only students of “male biological gender.” Non-student visitors get to use an outhouse in the back, perhaps?

As I understand it, the use of “biological gender” may be a bit of a problem. The bill defines the term as referring to the person’s chromosomes and physical characteristics. I’m no expert in the field, but I think the biology relates to sex and gender relates to more to a person’s social role or personal identification. “Biological sex” might be the better terminology. (See Wikipedia entry).

Outside of school, Sen. Tomes’ bill creates a crime called “single sex public facility trespass.” It applies to public accommodations with locker rooms, restrooms, and shower rooms in places of public accommodation accessible by multiple people at the same time and designated for use by only males or females. It then defines females as someone “who was born female at birth” or someone having “at least one x chromosome and no y chromosomes.” (So, for the first option, he makes the drafting mistake of defining a thing by referencing the thing itself — a “female” means someone who was born “female” — a defined term.) A male is someone who was born male at birth or who has at least one x chromosome and at least one y chromosome. So, for all that verbiage, it appears that if you have a Y chromosome, you go to the men’s room and if you don’t have a Y chromosome, you go to the ladies’ room. It’s a Class A misdemeanor if a female knowingly or intentionally enters a men’s room (or vice versa.) However, she is permitted to clean the toilets in there — exceptions are made for maintenance, for assisting in a medical emergency, and for accompanying a child less than 8 years of age. (The chapter also doesn’t apply to children under 18.)

The main problem is that sex and gender just aren’t as simple as Sen. Tomes’ wishes they were. And this, frankly, underlies a lot of what seems to come out of social conservatism. Gender occupies a spectrum and isn’t binary. There are challenges to accommodating that spectrum if we’re going to keep our bathrooms binary. Making matters worse, most of us get more wound up about nakedness and excretory functions than is probably necessary. The added emotional charge just makes dealing with the issues even more challenging. You have a person who feels like a man but looks like a woman who, like everyone else, needs to go to the bathroom from time to time. You have these binary bathrooms and people in them who are uncomfortable with the presence of someone who, outwardly anyway, looks like a person of the opposite gender. And, you have pooping and peeing and visible genitals. These are not the ingredients for a logical conversation about sound policy.

Dominic Holden, writing for Buzzfeed, has a column entitled “Why America’s Top LGBT Group Is Losing An Argument Over Bathrooms” where he observes that, despite the recent political successes for advocates of LGBT rights, they have been losing ground when bathrooms get involved. Describing the reason for the failure of an equal rights ordinance in Houston, he writes:

Their defeat can be attributed primarily to one ubiquitous, bumper-sticker-ready slogan: “No men in women’s bathrooms.” Anti-LGBT activists ran that message with visceral TV and radio commercials that claimed Houston’s nondiscrimination law would lead to men sexually assaulting young girls in public restrooms. This attack has been raised by conservative opponents virtually everywhere laws like this have been debated in recent years.

The argument is based on an underlying premise that transgender women are actually dangerous men — a claim that has no factual foothold. It’s never been an issue in the 200 cities and 17 states with laws like these on the books. But it’s kryptonite to LGBT nondiscrimination laws.

Based on that insight, I think we can expect to hear a lot more about bathrooms this session.

Sen. Boots has introduced SB 19 which would apparently distinguish between “veterinary dentistry” and “equine dentistry.” The former could be performed only by a vet, but equine dentistry would not be so limited.

“Equine dentistry” is not comprehensively defined, but it includes the “diagnosis, treatment, correction, or prevention of any dental disease, defect, injury, deformity, pain, or condition of a horse.” (Also of note – under existing law, “equine massage therapy” is a thing and it can be performed by non-veterinarians.)

These things don’t tend to come from nowhere. Presumably there is someone working on horse’s teeth without a veterinarian’s license and has persuaded Sen. Boots that horses are somehow different than other domestic animals (because under current law, “veterinary dentistry” is specifically mentioned as requiring a vet’s license.)

Sen. Miller has introduced SB 30 which contains a proposal recommended by the interim study committee on public health, behavioral health, and human services.

It would require the Dept. of Insurance to post on the department’s website information concerning internal and external grievances for accident and sickness insurance policies and HMO contracts. The Insurers and HMOs would have to provide information about the DOI website and the policy grievance procedures to their insureds when the policy is issued or renewed and also along with each notice of denial.

Insurers and HMOS would also be required to file quarterly reports with the Commissioner of Insurance on the number of denied claims during the quarter. The quarterly reports are required to contain information about how many claims were denied because they were experimental, investigational, and/or not medically necessary.

Seems like a good idea to me. Part of the insurance game seems to involve discouraging claims with bureaucracy. My personal experience involved denial of a claim following a medically necessary C-Section for one of my kids. Because I’m a lawyer and one of my best friends is a doctor, I was able to read the policy, determine what types of C-sections were covered and what types were not, and articulate why our case was best regarded as being in the former category. Even though, economically, I was in a better position than a lot of the people receiving medical services, it was still a pretty scary situation for us. I can only imagine what it must be like for people with fewer resources, both in terms of navigating the bureaucracy, and paying for the amounts that eventually come due.

Hopefully this bill would be helpful in discouraging arbitrary denials by insurers.

Sen. Holdman has caused a bill to be prepared that will evidently be introduced as SB 100 (available at the moment through the Senate Republicans) concerning sexual orientation, gender identity, and religious freedom. (I don’t necessarily agree with the rhetorical frame implied by the term “religious freedom” — since one person’s freedom can often be another person’s burden. It’s a loaded term. For an alternate example, lets say one person is proclaiming the virtues of the freedom to travel without restriction while another person bemoans the necessary infringement on their property rights. But, I’ll go with religious freedom for now.) As I see it, the proposed legislation does the following:

1. Repeals IC 22-2-16-4. This chapter (IC 22-2-16) generally prohibited local government from imposing on employers within its jurisdiction an obligation to provide benefits, terms of employment, working conditions, or attendance policies that were not required by the State or Federal governments. However, the provision specifically allowed local government to adopt civil rights ordinances that imposed obligations consistent with IC 22-9-1-12.1 and IC 22-9-1-2. This bill would repeal the provision granting local government such discretion on civil rights issues and, additionally, limits the authority of local government to create human relations ordinances, civil rights ordinances, or fair housing ordinances that are more stringent or encompassing than the state’s. Such ordinances must also be modified to protect people (including employers and property owners) from unfounded charges of discrimination and provide protections for the rights of individuals “to religious belief and conscience.”

2. Includes what amounts to a non-severability clause which specifies (or attempts to specify) that amendments to IC 22-9-1 (civil rights enforcement) or IC 22-9.5 (fair housing) (and the repeal of IC 22-2-16-4) by this bill are all void if any of the additions, amendments, or repeal by this bill are deemed void. (I actually had trouble parsing the language in this section to make it line up quite right, but I’m reasonably certain that’s the intent. The parsing may be a failure on my part, however, I did go so far as to try to write it out as an if/then statement in a computer program.)

3. There is a section that provides exemptions to the obligation of religious concerns to observe the equal rights provisions concerning gender identity and sexual orientation and prohibits “discriminatory action” against the religious concerns for actions consistent with that exemption. That section defines “discriminatory action” as, I shit you not, “any action taken by the state or a political subdivision.” Now, the language in the definition does go on to talk about some things that are included under that umbrella – but when you use “including” in a statute, that does not define the outer bounds of the thing you are defining. By definition, “including” is nonexhaustive. Included in “any action” is negatively altering tax treatment; disallowing a deduction, withholding or reducing grants, and withholding licensure or accreditation.

4. It defines “religious affiliated organization” very broadly. It can be, among other things, a nonprofit organization (e.g. daycare facility) controlled in conjunction with a religious organization or a nondenominational educational organization that is independent of any religious organization if it is predominantly organized to “encourage students to incorporate a religious point of view in the academic and practical activities” These religious affiliated organizations as well as more directly religious organizations and their rabbis, priests, preachers, ministers, pastors, or designees are exempt from the provisions of the civil rights statute and the fair housing statute. (Imams are covered by this exemption, but the decision not to specify them by name is somewhat notable.)

5. It declares as against public policy, any action taken inconsistent with RFRA (IC 34-13-9) by state or local government against – among others – a religious affiliated organization “on the basis that the person believes or sincerely acts in accordance with a religious belief or matters of conscience regarding marriage.” Among other things, this prohibits the state or local government from taking “discriminatory action” (which, recall, is defined above as “any action”) against a religious affiliated organization that provides social services if the organization acts or intends to act upon a sincerely held religiosu belief.

6. For persons (presumably businesses) with fewer than four full-time employees, acts and omissions related to providing goods, services, and accommodations for various marriage related events (including the ceremony itself or social events related to the marriage) are exempt from the provisions of the civil rights chapter concerning sexual orientation or gender identity.

7. The chapter permits separate restrooms, shower facilities, dressing facilities based on sex, sexual orientation, or gender identity. The attorney general will defend charter schools, public schools, local governments (and the State) against lawsuits based on allegations that their policies with respect to restrooms, shower facilities, and dressing facilities are discriminatory.

8. Adds sexual orientation, gender identity, active duty status, and veteran status as protected classes along with race, religion, color, sex, disability, national origin, and ancestry under the state’s civil rights statute addressing equal opportunity with respect to education, employment, and public accommodations as well as under the Fair Housing chapter.

9. It imposes a burden of proof of sorts on gender identity claims. You have to have medical proof consistent with your asserted gender-identity within the past 12 months and/or a consistent and uniform assertion of the “gender-related identity” for the past 12 months. Sexual orientation is simply defined as “actual or perceived bisexuality, heterosexuality, or homosexuality.”

10. It permits the Indiana Civil Rights Commission to impose a $1,000 penalty against a person who files a Civil Rights or Fair Housing complaint that the ICRC deems frivolous and intended to harm the subject of the complaint.

11. The current civil rights statute requires that state and local contracts include a non-discrimination provision that prohibits discrimination based on, among other things, religion. This bill would amend that to require that the non-discrimination contract provision, when made with a religious or religious affiliated organization contain a clause permitting a preference for employees of a particular religion and permitting a requirement that all employees conform with the religious tenets of the organization “to the extent permitted under Executive Order 13279 or Title VII of the federal Civil Rights Act[.]”

12. Prohibits the state or local government from refusing to issue a permit, revoking a permit, or otherwise imposing disciplinary action on the holder of a permit “based solely on a person’s lawful expression or lawful activity regarding marriage, sexual orientation, or gender identity or the lawful expression or lawful activity of the person’s employees, owners, or agents (if any) regarding marriage, sexual orientation, or gender identity.”

An item to keep in mind is that, under the terms of last year’s RFRA, specifically IC 34-13-9-2, a statute cannot be construed as exempt from RFRA unless the statute specifically cites an exemption under IC 34-13-9. This statute does not cite any such exemption for the gender identity and sexual orientation civil rights protections added under IC 22-2 and 22-9.5. I don’t think that’s a problem because of the “fix” (section 0.7) that says IC 34-13-9 does not authorize “a provider” to refuse to offer or provide services, facilities, use of public accommodations, goods, employment, or housing to any member or members of the general public. “Provider” is defined as basically anyone other than a church, nonprofit religious organization (including an affiliated school) and their rabbis, priests, ministers, and pastors. However, when you have two statutes that aren’t exactly parallel, there tend to be gaps around the edges. To the extent there are any such gaps, RFRA would take priority.

The AP has an article reporting on the progress of the Public Health Policy Committee’s studies during the legislative interim says that the committee could not come to an agreement on needle exchange policy. In the wake of an HIV outbreak in southern Indiana, the General Assembly gave the Indiana State Department of Health authority to approve local needle exchange programs. Such approval has been given to Scott, Fayette, and Madison Counties.

Rep. Charlie Brown, a Gary Democrat who’s a committee member, said he plans to sponsor legislation that would allow any Indiana community to start a needle-exchange program without the state health commissioner’s approval.

My questions on this — and maybe the committee addressed these issues — are:

1) What is the downside to allowing the local health officer to authorize a needle exchange program where needed? In other words, what does the public lose if clean needles are more readily available under circumstances that the state health commissioner wouldn’t have approved?

2) Is the state health department being unnecessarily restrictive? Is there evidence that there are counties in Indiana where this would help but the State won’t allow it?

At the end of the day, we shouldn’t let absolutist moral gestures stand in the way of practical solutions where the cost/benefit of such gestures doesn’t make sense. I think the history of these needle exchanges is that there is a fear that approving them is condoning the illegal and/or immoral behavior associated with needle use. You see echoes of that kind of fear in the resistance to getting HPV vaccinations for fear that it will lead to more girls having sex. But, even if you don’t approve of sex and drugs, it’s disproportionate to allow those activities to be a death sentence where there are fairly simple steps that can be taken to mitigate the adverse consequences.

Maureen Hayden, writing for CNHI, has an article in the Terre Haute Trib Star, entitled No-tax pledge clouds Indiana’s road funding debate in which Rep. Bob Cherry muses about the impact on Grover Norquist’s no-tax pledge in light of Indiana’s road funding needs. The broken bridge on I-65 is the specific trigger for these thoughts, but Indiana’s overall infrastructure needs are also a concern.

(Note: The Trib Star web page is unpleasant with pop ups and ads and whatnot — I really have to be interested in an article before I click on one.)

Back in 1998, then-candidate Bob Cherry made a promise never to raise taxes.
Seventeen years later, as the state needs billions of dollars to fix its crumbling roads and bridges, the Greenfield lawmaker wonders if it was a mistake.
“How can we make good public policy for the future if we’re tied to the past?” he said.
. . .
Cherry, a vice-chairman of the House’s Ways and Means Committee, said he fears the no-tax pledge will keep the General Assembly from acting on a long-delayed but needed solution.

The article mentions, in addition to the I-65 bridge, that 350 others maintained by the state are deemed structurally deficient. The gas tax, used to fund such repairs, has not been raised since 2002. Inflation and more efficient cars have reduced the amount available even as the infrastructure has continued to age.

Norquist’s no-tax pledge is an anti-government suicide pact. Norquist famously said he wants to shrink government to size where he could drag it into the bathroom and drown it in the bathtub. This dysfunctional relationship to government is one thing for an activist and ideologue like Norquist, quite another for lawmakers who have to govern. I’m not thrilled by the prospect of higher taxes. I’m less thrilled by the idea of traffic jams and sketchy bridges.

Another note – The Interim Committee on Roads and Transportation currently has no meetings scheduled. What to do about I-65 specifically and our roads and bridges in particular would be an excellent topic of study.

My favorite time of year on this blog is generally late December and early January when the new bills are released. Over the years, Sen. Steele has typically been one of the lawmakers who releases his bills the earliest. Consequently, I have spent an inordinate amount of time writing about bills he has introduced. So, even though I was frequently skeptical of his bill proposals, I am somewhat sad to hear that he will not run for re-election in 2016. Per the AP:

Republican state Sen. Brent Steele of Bedford told The Times-Mail on Tuesday that he wants to devote more time to his family and grandchildren and to his law practice. Steele will turn 68 next month.

Steele served in the Indiana House from 1994 to 2002 before being appointed to the state Senate to fill the seat vacated when Becky Skillman was tabbed to be the running mate for former Gov. Mitch Daniels.