The 2007 votes that made 2019 a historic year for transgender Iowans

Only three months in, 2019 is already the most significant year for transgender equality in Iowa since 2007, when state lawmakers and Governor Chet Culver added sexual orientation and gender identity to the list of protected classes in the Iowa Civil Rights Act. That 1965 law hadn’t been significantly amended in decades.

The crucial Iowa House and Senate votes on the civil rights law happened during the first year since the 1960s that Democrats controlled both legislative chambers and the governor’s office. Support for LGBTQ equality is often taken for granted now in Democratic circles, but the issue was seen as more politically volatile twelve years ago. The bill amending the civil rights act came late in the 2007 legislative session and could not have passed without some Republican votes.

HOW THE 2007 LAW MADE RECENT VICTORIES POSSIBLE

A full decade after gender identity became a protected class in Iowa, the American Civil Liberties Union filed our state’s first transgender rights case in 2017 on behalf of former prison nurse Jesse Vroegh. As a Department of Corrections employee at the Iowa Correctional Institution for Women in Mitchellville, Vroegh “was continuously denied the use of restrooms and locker rooms consistent with his gender identity, because he is transgender.” He also was denied insurance coverage for transition-related surgery.

A Polk County District Court jury determined in February of this year that the state violated the Iowa Civil Rights Act. Specifically, jurors found the Department of Corrections discriminated against Vroegh by barring him from using men’s restrooms and locker rooms, and by offering health insurance that did not cover medically necessary gender-affirming surgery. They awarded $120,000 in damages to the plaintiff.

This case is not over–the state has moved for a new trial, according to the Attorney General’s Office. But at least the 2007 law gave Vroegh a chance to fight discrimination in court.

Another lawsuit ended with a landmark ruling last month. The Iowa Supreme Court unanimously held that a Department of Human Services rule withholding Medicaid coverage for gender-affirming surgeries violated the Iowa Civil Rights Act. The ACLU of Iowa filed that case in 2017 on behalf of two transgender Medicaid recipients, EerieAnna Good and Carol Ann Beal. Justice Susan Christensen, whom Governor Kim Reynolds appointed in 2018, authored the decision, which I’ve posted in full below.

If not for the 2007 law, the Supreme Court might have reached a different conclusion. A lower court judge had found the state policy inconsistent with both civil rights law and Article I, Section 6 of the Iowa Constitution, which guarantees equal protection. However, the Supreme Court did not address the constitutional claim. Instead, justices affirmed the District Court finding that the agency’s rule “violates the ICRA’s prohibition against gender-identity discrimination.”

Of the six members of the high court who participated in Good, et al. v. Iowa Department of Human Services, only three (Chief Justice Mark Cady and Justices David Wiggins and Brent Appel) were involved with the 2009 Varnum v Brien decision, which found Iowa’s law banning same-sex marriage was unconstitutional. Justices Edward Mansfield and Thomas Waterman, who joined the high court in 2011, have publicly signaled they do not agree with the equal protection reasoning in Varnum. Mansfield has argued at length that Article I, Section 6 was not originally intended as the state’s “counterpart to the federal Equal Protection Clause.”

Without the legislature’s action twelve years ago, justices might have found no grounds to require the state to cover transition-related services for Iowans on Medicaid.

A SMOOTH PATH THROUGH THE IOWA SENATE

Democrats moved to extend civil rights protections to LGBTQ Iowans in the state Senate first, where the party held 30 of the chamber’s 50 seats following the 2006 election. Senators Joe Bolkcom and Matt McCoy–Iowa’s first out gay lawmaker–introduced the bill in February 2007.

The initial draft defined gender identity as “a gender-related identity, appearance, expression, or behavior of a person, regardless of the person’s assigned sex at birth,” and defined sexual orientation as “actual or perceived heterosexuality, homosexuality, or bisexuality.”

The State Government Committee passed the legislation mostly along party lines just in time for the first “funnel” deadline in March. Republican Thurman Gaskill joined committee Democrats to approve the bill, now numbered Senate File 427. Nonpartisan legislative staff estimated the potential fiscal impact as “not significant,” since the Iowa Civil Rights Commission would likely need to investigate only about a dozen additional cases a year.

No group solely focused on LGBTQ rights had lobbyists registered on this bill, but a broad coalition urged lawmakers to pass it, including the ACLU, several education groups, labor unions, some large businesses (Qwest, Principal Financial Group, Meredith Corporation, Iowa Health Systems), the League of Cities, and advocacy organizations for marginalized populations such as victims of sexual assault or domestic violence.

The entities lobbying against Senate File 427 were either religious-based organizations (Iowa Association of Christian Schools, Iowa Family Policy Center Action, Iowa Christian Alliance) or business groups (National Federation of Independent Business and the Association of Business and Industry).

State Senator Jack Hatch floor managed the legislation, which the full Senate passed in late March. Republicans offered several amendments, each of which failed mostly along party lines. (The Senate Journal provides the roll calls.)

One GOP amendment would have clarified that the law “shall not be construed to allow marriage between persons of the same sex.” Another would have required a person filing any unsuccessful LGBTQ discrimination complaint to be liable for the other side’s attorney fees. A third amendment would have exempted public and private schools from the gender identity provisions. The last GOP amendment stated the law would not apply to “private clubs or establishments exempted from coverage under Title II of the federal Civil Rights Act of 1964 […] or to religious organizations or entities controlled by religious organizations, including places of worship.”

After rejecting all the amendments, senators approved the bill by 32 votes to 17. Three Republicans (Jeff Angelo, Mary Lundby, and Pat Ward) joined all but one Democrat (Tom Hancock) to vote yes. Republican Gaskill, who had supported the bill in committee, was absent. An appendix near the end of this post lists all the senators who voted for and against the bill, noting those who are still serving in the legislature.

A CONCESSION CLEARS THE PATH IN THE HOUSE

The Democratic majority in the lower chamber was more tenuous. Iowans elected 54 Democrats and 46 Republicans to the state House in 2006, but Ray Zirkelbach missed the whole 2007 legislative session while on active duty with the Iowa National Guard in Iraq. Some of the remaining 53 Democrats represented relatively conservative rural areas.

Senate File 427 got out of the Human Resources Committee in early April. For weeks, House leaders didn’t bring the bill to the floor, lacking 51 votes to pass it. As the session’s end approached, advocates encouraged Iowans to contact their state representatives about the civil rights bill. Since it was unclear how many Democrats would vote no, a pressure campaign was also aimed at convincing House Minority Leader Chris Rants to allow a “free vote” in the Republican caucus.

Rants agreed to the free vote, for a price. House leaders agreed to let the minority leader offer a two-pronged amendment. The first part changed the definition of “gender identity” from “a gender-related identity, appearance, expression, or behavior of a person, regardless of the person’s assigned sex at birth,” to “a gender-related identity of a person, regardless of the person’s assigned sex at birth.” The amendment also clarified, “This chapter shall not be construed to allow marriage between persons of the same sex.”

State Representative Beth Wessel-Kroeschell floor managed the civil rights bill in the House. In a telephone interview with Bleeding Heartland on April 4, she recalled having doubts about whether the bill would get through.

Democrats knew at least a few House Republicans intended to vote for LGBTQ protections, because of public statements at forums in their districts. But GOP leaders never confirmed whether they would “lock up” their caucus or allow members to cross the aisle. Wessel-Kroeschell remembered some Republicans telling her they would support the bill if it protected only sexual orientation and not gender identity. Democrats didn’t want to remove the gender identity language, even though at that time, “there weren’t a lot of people representing transgender individuals,” she noted.

Republicans caucused for several hours before the bill was debated on the House floor. They emerged from the caucus agreeing to let some members join Democrats. One recalcitrant Democrat, Brian Quirk, asked for an amendment at the last minute exempting Catholic schools. Wessel-Kroeschell wasn’t interested. By that time, she already had the votes.

According to Wessel-Kroeschell, the Rants amendment “did absolutely nothing,” because the civil rights code “doesn’t have anything in it about marriage.” (Indeed, the Iowa Civil Rights Act was designed to counter discrimination in five areas: “public accommodations, employment, apprenticeship and on-the-job training programs, vocational schools, or housing.”) Iowa’s Defense of Marriage Act, limiting marriage to one man and one woman, was still in effect; the Supreme Court decision striking it down was two years in the future.

When I asked Rants about this episode during an April 4 phone call, he didn’t recall the marriage language as the most significant aspect of his amendment. He zeroed in on the first part, which narrowed the definition of gender identity (removing the words “appearance, expression, or behavior”).

That was a piece that was important for members of my caucus, and we wanted to be clear. We were hearing from a lot of employers about the sexual orientation piece. But the language involved a lot of other things. And we wanted to be clear about what it is we’re voting on and what it is we’re doing.

After the House approved the Rants amendment by voice vote, the path was clear. Senate File 427 passed by what looked like a comfortable majority, 59 votes to 37. The last appendix to this post contains the full roll call, with notes on which lawmakers still serve.

Although 50 House Democrats voted yes, they couldn’t have expanded civil rights protections without help from nine Republicans: Dan Clute, Greg Forristall, Clarence Hoffman, Libby Jacobs, Linda Miller, Scott Raecker, Bill Schickel, Doug Struyk, and Tami Wiencek. The three Democrats who voted against the bill were Dolores Mertz, Quirk, and Dawn Pettengill. Less than a week later, Pettengill switched to the Republican Party and remained in the House GOP caucus until her retirement in 2018.

The amended Senate File 427 went back to the upper chamber, where senators approved it the same day by 34 votes to 16. All 32 senators who had backed the bill the previous month did so again, joined by Republicans Gaskill (who had missed the previous floor vote) and James Seymour (who had voted no). Hancock remained the only Democrat opposed to adding LGBTQ protections to the civil rights act, joining fifteen Republicans.

Governor Culver signed the bill a few weeks later.

As this year’s court cases showed, the 2007 additions to the civil rights code didn’t magically end discrimination on the basis of gender identity. Still, that legislative battle gave transgender Iowans a powerful tool for defending their rights.

LGBTQ activists who spent many years laying the groundwork, allies who urged legislators to stand up for marginalized Iowans, and lawmakers who helped pass the bill should all feel proud of what they accomplished twelve years ago.

UPDATE: Former House Speaker Pat Murphy shared his recollections about this battle during a telephone interview on April 5. He recalled a lot of “games” being played by Rants and other Republicans, who didn’t want to vote on the civil rights bill and weren’t transparent about their intentions. Brad Clark led the LGBTQ advocacy group One Iowa at the time. He came to see Murphy after the bill cleared the Senate. Quite a few House Democrats–perhaps 45 or 47, Murphy recalls–had told Clark they would support the bill. Murphy said he could find the last few votes.

Murphy had discussed certain proposals, including this one, with Zirkelbach before he left for Iraq. Zirkelbach had indicated he would be a vote for civil rights when he came back. But after the Senate passed the bill so easily, Murphy wanted to move more quickly.

The speaker had promised his caucus that he would not bring any bill to the floor without being sure he had enough support to pass it. However,

The day we took up that vote–I’ll never forget it, because I drove up, and I was visiting with my wife before I went to work that morning, and she’s a nurse, and she was off that day. And I remember pulling up there. And I was talking to her on the phone, and I said, “I can’t believe I’m doing this. I said that as the speaker I would never take up a bill without having the votes.” And I said, “I’m taking up a bill today that I know I don’t have 51 votes for.” […]

I knew that I would have Kevin McCarthy, who was the majority leader, he would do a motion to reconsider and we’d take it up the next year. And McCarthy was actually opposed to taking it up then too. And the part that I just told him was, we need to take this up, make sure everybody votes for it that’s going to, and see if we could pass it.

But more importantly, the big part was, I didn’t want to leave that bill passing the Senate and then sitting on the House calendar until the following year, until Zirkelbach got back, if I could help it. Because that’s when you start having everybody lobbying against it. […]

When it gets back to September and October, you start having groups lobby you. And that’s when you get the Christian conservatives, the Catholic Church and everybody else start to lobby against that bill. And I was afraid we’d lose ground with one, two, or three members.

Murphy knew three members of his caucus were definite noes, so he needed at least one or two Republicans. Rumor was that GOP leaders were advising their members to leave the building if the civil rights bill came to the floor, so Murphy took the rare step of ordering a “call of the House.”

That procedure involves a roll call of every member on a given bill. State troopers can retrieve legislators and bring them back to the capitol if necessary. Murphy could only remember leaders ordering a call of the House a handful of times during his 26 years in the legislature. (After our conversation, I reviewed the records I pulled up earlier this year when researching the legislature’s debates on judicial selection six decades ago. The speaker ordered a call of the House when that constitutional amendment was debated in 1959 and again in 1961.)

As soon as Democrats brought the civil rights bill to the floor on April 25, Rants stood up to announce a Republican caucus. They met for several hours. (The House Journal indicates the chamber “stood at ease” at 2:16 pm and “resumed session” at 5:35 pm.)

Senate Majority Leader Mike Gronstal happened to be talking with Rants about some budget issue when Senate File 427 was called up. He told Murphy while Republicans were caucusing that he’d heard Rants tell a staff member, “I think Murphy’s calling our bluff.”

Somehow one of their members got wind and said, “Well, I hear they’re doing a call of the House so nobody can leave.”

And there’s nothing worse than–if you do a call of the House and a state trooper comes out and picks you up, you know, you’re driving on the interstate somewhere to get away from the capitol, and they drag you back to the capitol to do your vote. I mean, that’s something that ends up on the front page of the Des Moines Register, and Associated Press covers it. You get statewide name ID doing something–you know, it looks like you were running away from your job. […]

The bottom line was, we knew of two people that had publicly said they would support the civil rights bill if it came up. At least they’d said it in public forums back home. So we knew we had 51 votes for the bill. But the catch was, were they going to follow their party, or were they going to vote with us? […]

The other part was, I didn’t want to give conservatives and religious people the ability to spend six months lobbying against the bill if I could pass it.

McCarthy had misgivings, but Murphy wanted everyone on record about expanding the civil rights act regardless of the outcome. Even if they couldn’t pass the bill that day, when House Democrats were lobbied back at home, they could say they already voted for the legislation and weren’t going to change their position.

Murphy recalled Rants emerging from the GOP caucus stating, “You have to make a deal with me.” Democrats would withdraw their amendments, as would Republicans, and Rants would offer an amendment clarifying that the bill would in no way support gay marriage.

I said, “Christopher, it has nothing to do with gay marriage.” I said, “This is a civil rights bill.”

And he said, “I know. But this makes my caucus happy, and that’s what we need.”

Rants wanted the amendment to pass on a voice vote and asked for one other thing: only the floor manager, Wessel-Kroeschell, would give opening and closing remarks on the bill. He didn’t want other Democrats giving speeches.

Murphy agreed to the terms. While Rants was having his amendment drafted, the speaker told members of his caucus they would need to refrain from speaking, because they were on the verge of getting this done.

The floor debate was short: in less than a half-hour, House members completed the quorum call, adopted the Rants amendment, did the call of the House, and approved the bill on final passage. Murphy was surprised by how many Republicans who voted yes.

Overcome by emotion, Murphy had trouble announcing the vote total. His voice cracked while he went through the usual rituals of saying the bill had reached a constitutional majority and the title was agreed to. Speaking to the press a few minutes later, reporters commented on how emotional Murphy was. “I said, ‘Well, it’s not every day that you pass a civil rights bill. Especially when you didn’t think you had the votes to start with.’”

Not long after Senate File 427 passed, Murphy ran into Don Avenson, who had been the longest-serving House speaker in state history. Avenson had retired from the legislature to run for governor in 1990 and told Murphy that he hadn’t missed being the speaker “for one second.” But sitting in the gallery watching the vote on the civil rights bill, “It’s the first time I’ve wanted to be in the chamber since.”

As we discussed the 2007 law’s importance for recent court rulings, Murphy noted, “The part that a lot of people don’t understand is, there’s still about 32 states in the nation where you can legally get married to a same-sex person, but your employer can fire you for it, because you don’t have civil rights protection. […] Or you can be denied housing based on that. I mean, I just don’t think a lot of people understand how important the civil rights portion of that is.”

Final bit of Iowa political trivia: Abby Finkenauer, now a member of Congress representing Iowa’s first district, was the speaker’s page during the 2007 legislative session.

Appendix 1: Full text of Senate File 427, the 2007 bill adding protections for sexual orientation and gender identity to the Iowa Civil Rights Act

Appendix 2: March 8, 2019 Iowa Supreme Court decision, which held that denying Medicaid coverage for gender-affirming surgery violated the Iowa Civil Rights Act

Appendix 3: Iowa Senate roll call from March 26, 2007 on Senate File 427, amending the Iowa Civil Rights Act

Three Republicans and 29 Democrats voted for the bill (listed here in alphabetical order):

Jeff Angelo (R)
Staci Appel (D)
Daryl Beall (D)
Dennis Black (D)
Joe Bolkcom (D)–still serving
Michael Connolly (D)
Tom Courtney (D)
Jeff Danielson (D)
Dick Dearden (D)
Bill Dotzler (D)–still serving
Bob Dvorsky (D)
Gene Fraise (D)
Mike Gronstal (D)
Jack Hatch (D)
Bill Heckroth (D)
Rob Hogg (D)–still serving
Wally Horn (D)
Jack Kibbie (D)
Keith Kreiman (D)
Mary Lundby (R)
Matt McCoy (D)
Rich Olive (D)
Herman Quirmbach (D)–still serving
Amanda Ragan (D)–still serving
Tom Rielly (D)
Becky Schmitz (D)
Brian Schoenjahn (D)
Joe Seng (D)
Roger Stewart (D)
Pat Ward (R)
Steve Warnstadt (D)
Frank Wood (D)

One Democrat and sixteen Republicans opposed protecting LGBTQ Iowans from discrimination:

Jerry Behn (R)–still serving
Nancy Boettger (R)
James Hahn (R)
Tom Hancock (D)
David Hartsuch (R)
Hubert Houser (R)
David Johnson (R)
Steve Kettering (R)
Larry McKibben (R)
Paul McKinley (R)
Dave Mulder (R)
Larry Noble (R)
John Putney (R)
James Seymour (R) (voted for the amended version that returned to the Senate in April 2007)
Ron Wieck (R)
Brad Zaun (R)–still serving
Mark Zieman (R)

Thurman Gaskill (R) was absent for the first Senate vote but supported the bill when it came back to the chamber the following month.

Appendix 4: Iowa House roll call from April 25, 2007

The 59 state representatives who voted for Senate File 427, in alphabetical order:

Ako Abdul-Samad (D)–still serving
McKinley Bailey (D)
Paul Bell (D)
Deborah Berry (D)
Polly Bukta (D)
Dan Clute (R)
Dennis Cohoon (D)–still serving
Swati Dandekar (D)
Mark Davitt (D)
Ro Foege (D)
Wayne Ford (D)
Greg Forristall (R)
Marcie Frevert (D)
Mary Gaskill (D)–still serving
Elesha Gayman (D)
Lisa Heddens (D)–still serving
Clarence Hoffman (R)
Bruce Hunter (D)–still serving
Geri Huser (D)
Libby Jacobs (R)
Dave Jacoby (D)–still serving
Pam Jochum (D)–now serving in Iowa Senate
Dan Kelley (D)
Bob Kressig (D)–still serving
Mark Kuhn (D)
Vicki Lensing (D)–still serving
Jim Lykam (D)–now serving in Iowa Senate
Mary Mascher (D)–still serving
Kevin McCarthy (D)
Helen Miller (D)
Linda Miller (R)
Pat Murphy (D)
Jo Oldson (D)–still serving
Donovan Olson (D)
Rick Olson (D)–still serving
Tyler Olson (D)
Eric Palmer (D)
Janet Petersen (D)–now serving in Iowa Senate
Scott Raecker (R)
Michael Reasoner (D)
Nathan Reichert (D)
Bill Schickel (R)
Tom Schueller (D)
Paul Shomshor (D)
Mark Smith (D)–still serving
Art Staed (D)–still serving
Doug Stryuk (R)
Kurt Swaim (D)
Dick Taylor (D)
Todd Taylor (D)–now serving in Iowa Senate
Roger Thomas (D)
Roger Wendt (D)
Andrew Wenthe (D)
Beth Wessel-Kroeschell (D)–still serving
John Whitaker (D)
Wes Whitead (D)
Tami Wiencek (R)
Cindy Winckler (D)–still serving
Phil Wise (D)

The three Democrats and 34 Republicans who voted against the bill:

Dwayne Alons (R)
Richard Anderson (R)
Rich Arnold (R)
Clel Baudler (R)
Carmine Boal (R)
Royd Chambers (R)
Betty De Boef (R)
Dave Deyoe (R)–still serving
Cecil Dolecheck (R)–still serving
Jack Drake (R)
Polly Granzow (R)
Pat Grassley (R)–still serving
Sandy Greiner (R)
Dan Huseman (R)–still serving
Jeff Kaufmann (R)
Steve Lukan (R)
Mike May (R)
Dolores Mertz (D)
Steve Olson (R)
Kraig Paulsen (R)
Dawn Pettengill (D)–but five days later, she switched to the Republican Party
Brian Quirk (D)
Chris Rants (R)
Daniel Rasmussen (R)
Henry Rayhons (R)
Rod Roberts (R)
Tom Sands (R)
Chuck Soderberg (R)
David Tjepkes (R)
Walt Tomenga (R)
Jodi Tymeson (R)
Linda Upmeyer (R)–still serving
James Van Engelenhoven (R)
Jamie Van Fossen (R)
Ralph Watts (R)
Matt Windschitl (R)–still serving
Gary Worthan (R)–still serving

One Democrat (Ray Zirkelbach) and three Republicans (Chuck Gipp, Dave Heaton, and Lance Horbach) were absent.

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