Published On: Sat, Feb 14th, 2015

Gay rights rallies plan to counter Sam Brownback ending LGBT ‘executive order’ protections

Kansas Gov. Sam Brownback has never been shy about his opposition to gay marriage, but this week he rolled back an 2007 executive order which prevented the firing of state employees because of their sexual orientation or gender identity, enacted former Gov. Kathleen Sebelius. Gay rights activists will hold a rally on the steps outside the State Capitol on Saturday in response to Brownback’s decision, saying it strips “gay, lesbian, bisexual and transgender state workers of a protection.”

“This Executive Order ensures that state employees enjoy the same civil rights as all Kansans without creating additional ‘protected classes’ as the previous order did,” Brownback, a Republican, said.

“Any such expansion of ‘protected classes’ should be done by the legislature and not through unilateral action. The order also reaffirms our commitment to hiring, mentoring and recognizing veterans and individuals with disabilities.”

Kansas Gov. Brownback made national headlines by ending "extra" protections for homosexuals in the workplace. photo  Julyo based on work by Gilbert Baker, 1979 via wikimedia commons

Kansas Gov. Brownback made national headlines by ending “extra” protections for homosexuals in the workplace. photo Julyo based on work by Gilbert Baker, 1979 via wikimedia commons

Speaking in Lawrence Thursday, Sebelius said she had first issued the order to ensure that state workplaces were inclusive. She said she was “totally surprised” by Brownback’s decision to rescind the order eight years later and has no idea why he would do it.

Joseph Mastrosimone, Washburn University Law professor, who focuses on labor and employment law, said that despite the order, permanent classified employees remain protected from discharge based on their sexual identity because of Kansas’ civil service laws, which prevent non-merit-based dismissals.

Mastrosimone views Brownback’s decision as “shameful” and “troubling.” He believes ultimately the governor’s reversal on gay and lesbian protections could open up the state to increased litigation, in other words, even employees fired for legitimate reasons may now be more likely to sue.

“The surest way to invite a lawsuit from a current or soon-to-be former employee is to leave him with the perception that he was treated unfairly. Rather, if you leave the person with the feeling that he was treated fairly and with respect – even if he disagrees with the decision – he is less likely to sue,” Mastrosimone said in an op-ed article sent to The Capital-Journal.

Sebelius was "totally surprised" by the Brownback move  photo/ donkeyhotey

Sebelius was “totally surprised” by the Brownback move photo/ donkeyhotey

“Thus, smart employment lawyers preach ‘perception becomes reality’ to their clients on a daily basis. By this measure, there is nothing smart about the governor’s decision to revoke protections for gay, lesbian and transgender employees.”

Mastrosimone also indicated in an interview that nonclassified and nonpermanent employees are not protected from firing if they are gay, under Brownback’s order. Another effect of the order, he said, is to send the signal to potential gay and lesbian applicants for government jobs that they are not welcomed.

“I suspect you don’t send your resume,” Mastrosimone said of gays and lesbians considering applying for state jobs after the order. “Why would you?”

“I am astounded to learn after four years of the Brownback administration that the governor has suddenly decided that there’s some good cause to allow the state of Kansas to discriminate in employment because of who they love,” Rep. John Carmichael, D-Wichita said.

Brownback said any changes to the state’s anti-discrimination policy should be made by the Legislature.

Carmichael decided to take him up on that and introduced a bill an hour after Brownback’s order was announced. HB 2323 would add sexual orientation and gender identity to the state’s anti-discrimination law. This would prevent workplace discrimination against LGBT Kansans in both the public and private sectors.

Rep. Steve Brunk, R-Wichita, dismissed criticism of the governor’s decision to rescind the protection eight years after it had been granted by Sebelius.

“The previous administration had gone around the Legislature to create a law of their own that did not even exist,” Brunk said. “And so the governor, I think rightly so, has simply said we’re going to follow the law, we’re going to follow the Constitution.”

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About the Author

- Catherine "Kaye" Wonderhouse, a proud descendant of the Wunderhaus family is the Colorado Correspondent who will add more coverage, interviews and reports from this midwest area.

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