Vermont Legislature SmartTranscripts:

[Martin LaLonde (Chair)]: Welcome to the House Judiciary Committee this Tuesday afternoon, April twenty first. And this afternoon, we're gonna be taking some testimony on a proposal for constitutional amendment. And I won't do much of an introduction because we only have Eric for about fifteen minutes to do a walkthrough. If there are questions, we'll have Eric walkthrough it. If there are questions, we can have Eric come back another time later this week or early next week. But we just, since we have the public meeting this afternoon, I thought it was important to be introduced or reintroduced for the folks who were here last year. And we'll talk then. Over to you, Eric.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Thank you. Eric Fitzpatrick with the Office of Legislative Counsel here, as the chair said, to do a walk through of proposal of amendment four to the Vermont constitution, known frequently by the shorthand Prop four. As the chair also mentioned, I have to be in the house corrections and institutions in about fifteen minutes, hence the need for my quick walk through at this time, but happy to come back anytime for follow-up questions or whenever we might not be able to get to today. And a quick moment about the history of this, proposal because under the process in Vermont for amending the constitution, it has to be passed by the legislature. A proposal has to be passed by the legislature twice. And this proposal was passed in the February. And interestingly, during the first biennium when a proposal is voted on, has to be passed in the senate by a two thirds majority, not by a bare majority. It has to be a two thirds majority, and then by a simple majority in the house. This time around, second time around, it's simple majority in the senate, simple majority in that. So interesting. And historically, or at least last time in the first biennium, proposal did was passed by both bodies in the senate, 04/23/2024 on a twenty nine zero vote with the two thirds majority needed. And in the house, 05/08/2024, simple majority needed 144. This biennium so this is now the second biennium that constitutionally required that it passed both. This was passed this year, 03/11/2020. Twenty

[Martin LaLonde (Chair)]: nine zero.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Now I don't go through all that, but because that's constitutionally required, it's important to know the history of it so that you know that it's in the correct posture now, which it is. So turning to the language. The proposal to amend the constitution is to add. It's on page two. Starts on line 11. And there is a purpose section, which I'm passing over for now. Happy to look at that, but that actually will not appear in the constitution. That language is set out for purposes of explaining what the purpose is, but that will not be in the constitutional amendment. That the language that would be in the constitution if oh, and I neglected to mention. After passing the two bodies, it has to be voted on by the citizens of Vermont and approved by the majority as well. So if if this proposal passes the house the second time, which would be this by any then it would go on the ballot this coming November. And if approved by a majority vote, then it would be language that would be amended into the constitution. And it would be amended as article 23. That's on line 11, page two. And you'll see the first line is on line 12. It's sort of a title of the of the proposed provision that the people are guaranteed equal protection under the law. So that is what this is. It is an equal protection provision, and that's the proposal to add that. The United States constitution has an equal protection provision. Many state constitutions have equal protection provisions as well. Vermont does not have one specifically.

[Kevin "Coach" Christie (Ranking Member)]: The in the past, when when people have made claims that are in the nature of equal protection, that I'm being treated differently because I'm in because of my

[Eric Fitzpatrick (Office of Legislative Counsel)]: membership in this particular class of persons, this particular group, the Supreme Court has analyzed them under what's known as the common benefits clause of of Vermont constitution, but has commented sometimes that that is sort of a rough fit. It's not not exactly an equal protection clause, but that's the methodology that the court has used for analyzing it. So the proposal here is to have an express equal protection clause. And And what would it provide? Again, that's on page two. Starts again on line 12 after the title that I just read. It says the state shall not deny equal protection under the law. So there's your equal protection lead in language. On account of a person's then it's gonna set out membership in certain classes or certain groups. And since the state cannot deny protection on the basis I'm sorry. On account of a person's race, ethnicity, sex, religion, disability, sexual orientation, gender identity, gender expression, or national origin. So that sets out what is are often referred to as the protected classes. Now the inclusion of a protected class here doesn't necessarily mean that through the purposes or sorry, for for the intents of future lawsuits that a person might bring, future cases that might occur in court, that the court might recognize some other group that isn't listed here. That's possible. There's a fact there's a Connecticut Supreme Court case point to that that tells that the fact that a state constitution didn't identify a certain class does not mean that that it can't be judicially recognized by a court decision. So this is but the the classes that are specified here are the ones that I just read. So a person might make out a claim on the basis of their membership in one of those classes that the state was denying them equal treatment, so that they were being treated differently on the basis of their membership in that class. And then the state would have to, in one way or another and this is also something that's going to have to be developed in court cases, the state would have to propose a rationale. So the fact that a person could make out a claim that they were being treated differently doesn't mean that the state can't treat people differently sometimes. It just means that the state would have to provide a rationale. What type of legal analysis would be used in that? Again, it's something that's gonna be developed in the courts. Historically speaking, it's of some might be helpful to keep in mind, not necessarily a requirement that the Vermont Supreme Court would rule the exact same way. But for example, if someone made out a claim on the basis under under the federal equal protection clause, I'm being treated differently because of my race, the federal courts use what's known as strict scrutiny. So the rash the the burden is then on the state to show, okay. Yeah. We treated it treated that person differently because of race. But the treatment was narrowly tailored. We used the least restrictive means to serve a compelling state interest. So it's not that it's prohibited, but it does place the burden on the state to demonstrate by some standard that they had a reason for treating people differently. Could be successful, might not be successful. But it's not a blanket prohibition on it, the way those types of constitutional provisions have been interpreted. So lastly, or at least secondly, let's see the second sentence. And this is actually based on some language that was in the past recently in the New York constitution. But nothing in this article shall be interpreted or applied to prevent the adoption or implementation of measures, sorry, intended to provide equality of treatment and opportunity for members of groups that have historically been subject to discrimination. So, other words, to think of an example, like that language could be used to say that an affirmative action program, for example. Let's say a law enforcement agency had an affirmative action program. They want to try and include members of it might be race, ethnicity, gender, whatever it may be, to increase the number of those folks who are participants on its face. But you might look at that as a violation of the first sentence. Right? That could be a treatment of somebody differently on the basis of one of those protected categories. But the second sentence is saying, the first sentence shall not be interpreted in that way to prohibit what might be called an affirmative action sort of program, if it's intended to provide equality of treatment for members of groups that have historically subject to discrimination. So that's the idea there. Again, similar language in the New York constitution I've mentioned that passed a couple of years back, I believe. So again, much of this will certainly be worked out in the courts. What standard of review to apply? If someone makes out a claim,

[Carrie Brown (Executive Director, Vermont Commission on Women)]: will there be how is it that one

[Eric Fitzpatrick (Office of Legislative Counsel)]: might demonstrate that even though they're not a member of one of these specifically mentioned classes, might they still get some kind of heightened protection in the context of bringing a legal claim? That would be something the courts would have to work out. And what the remedy might be. If someone does make out a claim, is it the sort of situation where there might be

[Kevin "Coach" Christie (Ranking Member)]: The

[Eric Fitzpatrick (Office of Legislative Counsel)]: remedy might be limited to an injunction, for example, an order from the court that says, state, you can't treat people differently on the basis of this anymore? Or might there be monetary damages available? All that is for the court to work out. And the court does have decisions that have come down in the past that provide guidelines for when monetary damages are available for a constitutional violation, for example. There's a longstanding Vermont Supreme Court doctrine on when that happens. But it's not expressly provided for here. So, of course, we'll have to work that stuff out. Again, last thing, I think Oh, that's tonight, right? Public hearing. That's also statutorily required. I think it's by rule, actually, by House. In any event, requirement that in the House, but not the Senate, there has to be a public hearing on the proposed constitution. And that's really a quick walkthrough of the language and where some of it came from and where the proposal sits procedurally at the moment brings me to pretty much 01:15 exactly. But I can be a minute or two late if there's anything else that you want me to cover before I head out.

[Martin LaLonde (Chair)]: No, think that's good. And like I say, we can have you back in later this week or early next week if there are any questions. I will get you down there so that Alice will trust me next time when it has a few minutes of time when you're already booked with Alice.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Thank you. Appreciate that. That way, you don't walk in the door and the first thing that said is, thought you were gonna be here at 01:15. Right. Exactly.

[William Browning (Visiting student)]: I thought you were gonna be here at I know.

[Zachary Harvey (Member)]: That's why don't think he doesn't like that.

[Thomas Oliver (Member)]: First time you

[Eric Fitzpatrick (Office of Legislative Counsel)]: Just for you. I appreciate that.

[Renee McGinniss (Policy Analyst, Vermont Family Alliance)]: Thank you all, Eric. Yeah, see

[Zachary Harvey (Member)]: you soon. Thank you for being here, Eric.

[Martin LaLonde (Chair)]: Before I do, I would actually, if we could have our guests introduce themselves. Think we to be here for fifteen minutes. Thank you, Mr. Chairman. My name is David Blythe.

[David Blythe (Visiting Professor, pre-law group host)]: I'm a professor at law school. We're King's guests and we have four members of our pre law society. Gentlemen, just introduce yourselves and just very briefly let the members of the committee know why you're here.

[Angela Arsenault (Member)]: My name is Jimmy. I'm a criminal justice and psych student and I just want to see how things are front line in the community.

[William Browning (Visiting student)]: Well, I'm William Browning. I'm also a criminal justice student.

[Martin LaLonde (Chair)]: I've had history with Boise State, I actually wanted come back and just see how a different state ran. Great, excellent. I'm Harrison Salisbury, criminal justice.

[Angela Arsenault (Member)]: I was just really curious to

[Harrison Salisbury (Visiting student)]: see how the state of Vermont worked internally. Good afternoon, I'm Jared Stevens. I'm one of the co presidents for Pre Law Society. I'm mostly here for my own benefit, also just to try to expand the club, get people opportunities, see the judicial system, all of that. Great.

[Martin LaLonde (Chair)]: Well, well, thank you. Thank you for being here. We appreciate, you know, your your hosting us, and we especially appreciate Kenny. Kenny's hosting us.

[Thomas Oliver (Member)]: Believe me, I

[Zachary Harvey (Member)]: do. We we all

[Martin LaLonde (Chair)]: we appreciate you for Kenny as well. Something was set there. Can go up to it. Sorry. Alright. Thank thank you all, Carrie. If you could

[Angela Arsenault (Member)]: identify yourself for the record

[Martin LaLonde (Chair)]: and proceed. Thank you for being here.

[Carrie Brown (Executive Director, Vermont Commission on Women)]: Thank you. I'm Carrie Brown, the executive director of the Vermont Commission on Women. And I'm really happy to be here talking about this. I'm so I just can't tell you how pleased I am that this has worked its way as far through the process as it has. So, I wanted to just tell you a little bit about where we're coming from on this. So the the Commission on Women is an independent state agency and working to advance rights and opportunities for women and girls in Vermont. We've been in exist in existence since 1964. And our work is guided by a collection of policy statements that are adopted by the full commission and periodically reviewed and updated. The policy statement that guides my testimony today is one that was first adopted in 1995. And while some of the details may need to be updated, in its essence, it rings as true today as it did over thirty years ago. And I'll just read this to you. Whereas the Vermont constitution states that all persons are born equally free and independent and have certain natural, inherent, and unalienable rights, amongst which are the enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining happiness and safety. And whereas, although the Vermont constitution guarantees equal rights for all persons, the reality is that this guarantee is neither recognized nor practiced by our society as a whole. And whereas in Vermont, as well as the rest of the nation, a great deal of work needs to occur in order to assure every citizen full civil rights as guaranteed under the constitution. Now, therefore, be it resolved that the Vermont Commission on Women supports legislation, policies, programs, and initiatives that facilitate full civil rights for all people, regardless of race, color, religion, national origin, gender, sexual orientation, gender identity, ancestry, place of birth, age, physical disability, or mental disability. So we were pretty comprehensive in 1995, kind of proud of the 1995 commission. So the Commission on Women has been engaged in efforts to adopt an equal rights amendment at both the federal and the state levels throughout our sixty year history. But, actually, in the big picture of history, we come to the fight relatively late. Proposal four, as you have before you, is built on the foundation of hundreds of years of efforts on the part of generations of American women to establish equal legal rights. The first equal rights amendment to the federal constitution was proposed in 1923. The Seneca Falls Convention on Women's Rights took place in 1868. Abigail Adams urged her husband to be a member of the ladies in 1776. And just a side note, I was researching this, I read part of his response, which was quite disrespectful and dismissive. And all of these were based on their ancestors' experiences. Then in 1986, a proposed amendment to the Vermont constitution that addressed protection on the basis of sex failed at the ballot. Some of the arguments heard at the time included the fear of legal and social consequences such as reproductive rights and gay rights. In Vermont, we heard threats that passage of the ERA would lead to the interpretation of sex as inclusive of sexual orientation, leading to same sex marriage and other protections of gay rights. Testimony at the time warned that we would be forced to hire gay people as teachers or allow women to serve as pastors. So in the decades since, Vermonters have recognized that these other protections that we were warned against are, in fact, protections that are just as necessary as those against sex discrimination. We have a broader understanding of equity as well as of the interconnectedness of forms of discrimination. Through our laws, we've recognized many of these rights, but as you know, laws can change. This is why Vermont amended our constitution to include a right to personal reproductive liberty and to abolish slavery, even though there were also Vermont laws in existence to protect those rights. And this is why the Vermont Commission on Women supports proposal four, which would explicitly prohibit the state of Vermont from engaging in discrimination and unequal treatment on the basis of sex, sexual orientation, gender identity, and gender expression, among other important protective glasses. We believe it's long past time for Vermont to take this important step by providing additional constitutional protection for our residents. We are living in a time when we cannot take for granted that the legal and social gains made for equality based on sex or any other class will stand. We've never been able to take for granted that the courts will interpret the constitution's current wording to protect people based on sex or any other class. While we cannot predict how the Vermont Supreme Court will decide to analyze cases under this proposed constitutional amendment, we do hope that it will trigger a heightened standard of review by the court in accessing government actions that treat people differently based on their membership in a named protected class. Today in public discourse, we hear echoes of the sentiments that defeated the equal rights amendment in the past. At the time, Vermonters were told that constitutional protection would undermine traditional gender roles and destroy the very heart and structure of the family. They were told that equality in the constitution would erode the natural roles and norms of men as providers and women as caregivers. I can attest on a personal note that growing up as a child in the nineteen seventies with a mother who hosted women's lib meetings in our living room when's last time I heard the term women's lib? I never, never dreamed that my children would grow up to hear the vice president of The United States tell women that working full time instead of having children is a path to misery. Or to say, we actually think God made male and female for a purpose, and we want you guys to thrive as young men and as young women, and we're going to help with our public policy to make it possible to do that. We support and appreciate the move to create a standalone equal rights amendment in article 23 of the constitution, as well as the inclusion of the language, nothing in this article shall be interpreted or applied, to prevent the adoption or implementation of measures intended to provide equality of treatment and opportunity for members of groups that have historically been subject to discrimination. We believe that taken as a whole, this amendment sends a bold and timely message about our values and will offer Vermonters important protection from discriminatory state action. Thank you very much. Any questions for

[Martin LaLonde (Chair)]: go ahead, Zach.

[Zachary Harvey (Member)]: Thank you, Carrie, for coming in. I think at the outset, just wanna say that I feel like your interpretation of the vice president's comments were taking a little bit out of context, because I think what the vice president was looking to convey, and I think something that we can all appreciate in the room, is that there's an affordability crisis in our country, there's an affordability crisis in our state. What the vice president was, I think, looking to articulate is that it is okay to have different paths. Four year colleges aren't for every student, just like going to the workplace isn't for every woman. And that there is value and dignity in raising a family with them to help. So I think castigating that as something that's negative or anything other than him just trying to opine on a crisis of the consciousness of the country. I think that's just We're going

[Zachary Harvey (Member)]: to diverge on our interpretations of those remarks. Specific to the proposal four, I'm wondering if you have any concerns about the definitions or the lack of definitions about gender identity and gender expression. I don't have any concerns. I think that those are pretty clearly defined in law and impressed in the lot already.

[Zachary Harvey (Member)]: But I think they're unconstitutionally vague. And I think, you know, with lack of definition and, again, we're probably on different side I think we probably are certainly on different sides of this issue. But my concern is that with those two terms not being described in the proposal itself, it could create a constitutional crisis for the very proposal and could undermine the entire thing. So I think there are concerns there. I'm also concerned about recent case law that we saw, which was students for fair admissions versus Harvard in 2023. And I'm curious if you have any thoughts on affirmative action and really what, I guess, ongoing legal challenges to the underlying doctor to this.

[Carrie Brown (Executive Director, Vermont Commission on Women)]: Yeah. Well, so that's why we think it's really important that that sentence about nothing shall be interpreted as, like, prevent adoption, etcetera, etcetera, members of groups that have historically been subject to discrimination is really important because that is that is something that, you know, as, centuries and centuries and centuries of discrimination against women and of denying women their rights has resulted in a situation today where things are not necessarily 100% people because of all the discrimination that has happened in the past. And that is even much more true for members of other races, people who have disabilities. And so in order to remedy some of that, in order to get people on equal footing, sometimes something along the lines of affirmative action is called for.

[Zachary Harvey (Member)]: Would you advocate for reparations? Financial reparations?

[Carrie Brown (Executive Director, Vermont Commission on Women)]: Women? Yes. I think that's a great idea. Yep. That's probably not

[Eric Fitzpatrick (Office of Legislative Counsel)]: what you meant. What did you mean?

[Martin LaLonde (Chair)]: No. No. That's that's exactly it.

[Zachary Harvey (Member)]: But do you think like, how do you think that would pull in public? Do you think that's something that's really popular?

[Carrie Brown (Executive Director, Vermont Commission on Women)]: Reparations for women? I I I can't imagine a lot of people would be very supportive of that.

[Martin LaLonde (Chair)]: Why do you think that is?

[Zachary Harvey (Member)]: I don't know. What do you think? I'm I'm not the expert on this.

[Carrie Brown (Executive Director, Vermont Commission on Women)]: Yeah. I'm not an expert on reparations.

[Zachary Harvey (Member)]: But you are expert on women's rights? Yes. So I guess my last question is, do you have any evidence that women's rights are being diminished right now in the city of Vermont? Yes. Tell me more.

[Carrie Brown (Executive Director, Vermont Commission on Women)]: Alright. Well, we look at women's economic situation in Vermont. Look at how much money women are making in Vermont, and we compare it to how much money men are making in Vermont. We see a difference. All the wage gap. I'm sure you've heard of it. And there are many, many reasons why this exists. Historic discrimination has been part of that. It is less a part of it now, I would say, than it used to be. We no longer have ads in the paper that are specifically saying that they're for women or for men. So that's an improvement. But we do still have things like we had a case in court not too long ago where a woman was fired from her job and replaced by a man with much less experience who made a lot more money than she had been making. And the rationale that the employer gave was that the man had a family to support, so he needed to be paid more money. That is discrimination, and the courts found so when she brought a lawsuit against the employer. Where was this case brought? In Burlington.

[Zachary Harvey (Member)]: Thank you. I mean, the only thing that I would add is, my professional work experience is in financial services in New York City.

[Eric Fitzpatrick (Office of Legislative Counsel)]: So it's very different.

[Zachary Harvey (Member)]: I was born and raised in Vermont, and obviously I'm back here now serving the legislature, but the Vermont economy is very different than that we might find in other states. And what I mean by that is the services economy is robust, especially when you talk about financial services and tech and the industry that you might find in New York City versus the industry that you might find in Vermont. So I think, while again, I don't have any of the data to substantiate or refute what you're saying about in terms of the wage gap that exists. I think historically we have seen a wage gap between the two genders. But I would also say that in terms of the economy in the state of Vermont and the jobs that are being done by men and the jobs that are being done by women, there probably is a disparity in between those jobs. It's not me justifying anything, I think there is a reality that the jobs are probably vastly different than you have a man and a woman working on an investment banking desk in New York. So the jobs are probably very different, you know, when I think of, like, working the land versus working behind the desk on a computer.

[Carrie Brown (Executive Director, Vermont Commission on Women)]: You are correct that we have a high reliance on service jobs.

[Zachary Harvey (Member)]: Mhmm.

[Carrie Brown (Executive Director, Vermont Commission on Women)]: And you are correct that occupational segregation is a factor in the wage gap. However, Vermont's wage gap is much less than almost every other states. And so in spite of the fact that we may have a lot of women working in service jobs and childcare and things like that that pay less, we still have a smaller wage gap. And that is because we have done a lot of work to try to change that. The legislature has passed many laws, equal pay protection law. We have, a law against basing salaries on past salary history. We have, people have the right to request flexible working arrangements. We have lots of programs that private organizations have put in place, well as the Vermont Commission on Women and our partners that work directly with employers on education and on providing tools such as we have something called the LEAP, which stands for oh, now I can't remember. But it's a it's a it's a toolkit that small businesses can use to audit themselves and to find out, are they paying equally? Are they not? And then but it looks at not a problem just simply lining up the numbers against each other. It's also looking at promotional practices. It's looking at, you know, how they're hiring, where they're advertising. So all these things can really make a big difference. So Vermont gets a ton of credit for doing a lot to offset the kind of inequalities that we see in the workplace.

[Zachary Harvey (Member)]: Right. And I think that's kind of my

[Eric Fitzpatrick (Office of Legislative Counsel)]: point is that that should be celebrated because I don't It is celebrated. Yeah. When I

[Zachary Harvey (Member)]: think of Vermont and the list of offend you know, quote unquote offenders of having a a more vast wage gap, it seems like the work that we've done should be celebrated, which is why I'm curious why we need this in the first place.

[Carrie Brown (Executive Director, Vermont Commission on Women)]: Because those are all laws.

[Rev. Arnold Thomas]: Right. Right.

[Zachary Harvey (Member)]: There are already laws.

[Carrie Brown (Executive Director, Vermont Commission on Women)]: Yeah. Where there are already laws, and laws are not permanent protections necessarily.

[Zachary Harvey (Member)]: Can't But I think under the guise of, you know, the federal government coming for us, I just don't think that strengthens the argument. To me, that weakens it.

[Carrie Brown (Executive Director, Vermont Commission on Women)]: Oh, I think that we need this protection in Vermont.

[Zachary Harvey (Member)]: Right. But some could take that testimony as hyperbole. The fear of sensationalization of the federal government coming for us.

[Carrie Brown (Executive Director, Vermont Commission on Women)]: Didn't say anything about the federal government coming for us.

[Zachary Harvey (Member)]: But coming for our rights and the need for additional protections here. If it's already codified in law, it's working, right? Like your own testimony is that this is working. The wage gap is the slummest it's probably ever been in the state of Vermont. That to me sounds like progress, which means that we don't really need additional language

[Carrie Brown (Executive Director, Vermont Commission on Women)]: prop floor. Just to clarify, I think that we do need this in our Vermont constitution in order to protect the Vermont laws that we already have. It's not about the what the federal government might or might not do. It's about what might happen in the future. A future Vermont legislature could make changes to those laws, and we wanna we wanna protect people's rights in the event that that might happen. Sure. Habib.

[Angela Arsenault (Member)]: Thank you so much for being here. You kind of got to my question, which is just this would be future protection as well for equal rights, and that that would be if any law were to be repealed or changed that could potentially impact someone's rights, that this would be an additional protection, constitutional state, constitutional protection that would protect Vermonter in the future. Correct? Yes. That's the idea. Yeah.

[Zachary Harvey (Member)]: And you think that's important?

[Carrie Brown (Executive Director, Vermont Commission on Women)]: I think that's extremely important because we cannot predict what will happen. I mean, one of the one of the strengths of the legislature is that you all can respond to what's happening in the world, you can make laws and change laws, and that's good, and there needs to be something underlying it, which is why we have a constitution at all.

[Angela Arsenault (Member)]: And do you think that this type of protection is one of those protections that's needs to be one of those underlying

[Carrie Brown (Executive Director, Vermont Commission on Women)]: I do. Yes. Yes. I do. Because I I just I don't think that I mean, we know from historically that it's those rights are not necessarily always guaranteed. So I think when that's why we need to spell it out.

[Martin LaLonde (Chair)]: Thank you. That's him.

[Thomas Oliver (Member)]: How do you feel about males competing in women's sports?

[Carrie Brown (Executive Director, Vermont Commission on Women)]: Well, I mean, I think if you really want my honest answer as a parent of kids and who play sports, I would much rather see a world where sports were not necessarily segregated by gender, but by ability. So I know we don't live in that world, but I would be a lot happier about that. I know that there are women who could pitch a baseball fast enough to be able to be a pitcher in MLB, and it would be great if there were no segregation that way.

[Martin LaLonde (Chair)]: You said pitch in baseball fast enough to pitch in the MLB.

[Carrie Brown (Executive Director, Vermont Commission on Women)]: I'm sure of it. I could be wrong, but I believe it.

[Martin LaLonde (Chair)]: Right. I just appreciate it. I have one more to say.

[Zachary Harvey (Member)]: How would you define a woman?

[Carrie Brown (Executive Director, Vermont Commission on Women)]: I'm not gonna answer that question. Sorry. Why? Yeah.

[Eric Fitzpatrick (Office of Legislative Counsel)]: I'm not gonna answer that question.

[Zachary Harvey (Member)]: It seems to me that the head of

[Eric Fitzpatrick (Office of Legislative Counsel)]: the Vermont Women's Alliance should be able to answer that. I'm not gonna answer that question.

[Zachary Harvey (Member)]: Okay. I think the silence is deaf. Would just say that.

[Martin LaLonde (Chair)]: Thank you very much, Gary. Appreciate being here. And we'll go to Arnold Thomas next because I see that Marquis is here quite yet. So joining us by Zoom. Thank you for being here, Reverend Thomas. I appreciate it.

[Rev. Arnold Thomas]: Good to be here. Thank you for inviting me. Can you hear me by the way?

[Martin LaLonde (Chair)]: Yes, we can. Just identify yourself for the record and proceed. Thank you for being here.

[Rev. Arnold Thomas]: Yes, my name is Reverend Arnold Thomas. I am the former pastor of Good Shepherd Lutheran Church in Jericho, Vermont. I, am also the former conference minister, which is the the executive minister of the United Church of Christ, commonly understood as congregational churches in the state of Vermont. I actually was part of the effort to move the conference of congregational churches in the state toward becoming open and affirming, that is affirming and inclusive of employing as well as affirming the membership of gay and lesbian members within the church. So that happened back in 2002, which gives you an indication of how long I've been here in Vermont. Actually, came to Vermont in 1998 and have been here since then. So I'm glad to be invited. And I'm also representing to some extent the Vermont Racial Justice Alliance where I serve on the board. So should I continue?

[Martin LaLonde (Chair)]: Please do, yes.

[Rev. Arnold Thomas]: So I offer my support a proposition four with a note of skepticism. The universal ethic that unites both secular and sacred ideals is the golden rule, to do unto others as we would have them do unto us. Fortunately, the others we do unto are preferably those who look and act like us. Anyone else is considered less or entirely undeserving of equal status, dignity, and treatment. We Vermonters need to remind ourselves that while we were both the first state in the nation and first region in The Americas to outlaw slavery, what we endorse theoretically was not what we practice. White Vermonters, like white Americans in general at the time, were inculcated and conditioned to regard those unlike themselves as inferior and often neglected the enslavement of others within their state. So my note of skepticism is one that questions the sincerity of this proposition, given our conditioning to the culture of hierarchy, division, and favoritism. How committed are we in creating a cultural infrastructure in which our teachers, health care providers, law enforcement officials, politicians, along with the rest of us, are ready to devote our lives and resources to assuring the rights of others regardless of their race, ethnicity, sex, religion, physical ability, sexual orientation, gender identity, gender expression, or national origin. When right when ice roams among among us, our neighborhoods searching for our neighbors, when our residents are unable to afford decent housing, when children marginalized in one form or another fail to see themselves reflected in their teachers and curricula, when people of color live in constant caution and fear for their safety in an overwhelmingly white state, When life saving medical care remains out of reach for many, how committed are we to devoting our lives and resources to changing these ingrained conditions of our culture. This proposition offers us an objective we are presently unprepared to achieve and reeks of the skepticism Peter Townsend of the who declared, meet the new boss, same as the old boss. My endorsement of proposition four, an equally urgent proposition that we prepare ourselves for the challenge of living up to and into this proposition. Thank you for your invitation.

[Martin LaLonde (Chair)]: Thank you very much for being here. Are there questions for Jordan Thomas? I have one. Yeah, Zach.

[Zachary Harvey (Member)]: Reverend, thanks for your testimony. I'm curious, what denomination is your parish?

[Rev. Arnold Thomas]: My parish, My denomination is United Church of Christ. And United Church of Christ more commonly is understood as congregational churches in this state. In Montpelier, that would be Bethany United Church of Christ. But I have also served in an ecumenical capacity. My last parish, by the way, was Good Sheppard Lutheran Church, where I served as the ecumenical pastor of that church for seven years before retiring.

[Zachary Harvey (Member)]: Okay. So I just was curious if it doesn't really fall within the scope of traditional Catholic social thought.

[Rev. Arnold Thomas]: No, it doesn't.

[Zachary Harvey (Member)]: Yeah. Okay. I just think it's just worth pointing that out. I think your values are very much aligned with those of the Catholic church, but maybe in practice is a little bit different. One of the things that you mentioned is that you have Vermonters that are fearing for their safety. Was wondering if you could tell me a little bit more about that.

[Rev. Arnold Thomas]: When you say Vermonter, said something

[Zachary Harvey (Member)]: that we have Vermonters fearing for their safety.

[Martin LaLonde (Chair)]: Yes. I'm Vermonters.

[Rev. Arnold Thomas]: Yes. I'm referring specifically to Vermonters of color

[Zachary Harvey (Member)]: Mhmm.

[Rev. Arnold Thomas]: Who are who in an overwhelmingly white state are cautious and afraid of for their safety. We we should applaud the fact that Vermont was one of the first state, if not the first state, to implement a program for for for fair and impartial policing.

[William Browning (Visiting student)]: But

[Rev. Arnold Thomas]: that remains a part time program for the training of state police officers, as well as, and I think there's also a counterpart in the police academy for the training of people training to be state police officers. That applies mostly to the state level, not to the local level. There are no such counterparts on the local level. And this is where persons of color in Vermont are most affected. Although there have also been discrepancies and cases in which the state police has also been challenged because of their unfair approach to drivers, to people who have been driving on Vermont roads, who are of color, be they black or people of different ethnicity. So that's all on the record.

[Zachary Harvey (Member)]: Yeah. No, I appreciate that. And I would say that one of the frequent flyers in this committee is the Commissioner of Public Safety, Jennifer Morrison. And I think if you were to ask the Commissioner about the Fair and Impartial Policing Act, which she had a hand in crafting, it is not a part time policy. I think she takes it very seriously. I think everyone in Vermont state police and law enforcement takes their duties very seriously to all Vermonters. And as we heard from the last witness and what you just pointed out with the landmark legislation that was the Fair and Impartial Policing Act, We live in one of the most progressive welcoming states, I think probably in the country,

[Martin LaLonde (Chair)]: which again is something that

[Zachary Harvey (Member)]: should be celebrated. The other point that I just want to mention, sorry, let me just get this question out and then I promise you we'll have time. You had mentioned a crisis in healthcare, and I wonder if it's a lack of access for people of color to healthcare in the state of Vermont, or if it's an affordability crisis, and whether that people, whether you're white, brown, black, or some other color, people just can't afford healthcare regardless of the color of their skin.

[Rev. Arnold Thomas]: Well, think that is correct. And I think it is especially pertinent among people of color. But I think it applies to everyone that the affordability of healthcare has become so out of reach that when we look at the issue of equity, it is not only that of racial, ethnic, gender equity that we're pursuing. Also one that provides more affordability and accessibility to all other aspects that affirm the dignity of a person's presence and status in the state. And that includes education, it includes healthcare, it includes housing and other matters as well. Yes, I agree.

[Zachary Harvey (Member)]: On that, we we absolutely agree.

[Martin LaLonde (Chair)]: Thank you. Coach and then Tom. Coach unmute yourself. You're not unmuted yet.

[Zachary Harvey (Member)]: Okay, go ahead, folks. Hello.

[Kevin "Coach" Christie (Ranking Member)]: I just wanted to take a moment and really welcome all of our guests today, especially Reverend Thomas, who's been known you know for his work on breaking down those barriers across the state. And I just wanted to say thank you before I lost that opportunity. Thanks again.

[Martin LaLonde (Chair)]: Thanks, coach.

[Rev. Mark Hughes (Executive Director, Vermont Racial Justice Alliance)]: Tom.

[Thomas Oliver (Member)]: Thank you, everyone. Think you almost covered my question having to do with fair and impartial policing. I'm just trying to clarify if you believe that the FIP wasn't fully observed by all law enforcement in the state of Vermont?

[Rev. Arnold Thomas]: I think there are cases in which, state police officers have been brought to to court, and issues have been issues and have been considered where they're they have not been fair and impartial in their dealing with in their dealing with people of color on the road. And again, I think that's a matter of that's a matter of record. But I think in light of that record, we need to we need to pursue a more serious commitment to the training of both state police officers, as well as local police agents, officers in trying to implement a more serious and dedicated, fair, and impartial policing policy. I have no I have no question that that the present commissioner or public safety, Jennifer Morrison, as well as as well as previous commissioners, have tried their best to make sure that this procedure has been fairly implemented. But we're dealing with individuals who do not always agree and who do not always practice what they believe. And so we need to be very careful. We need to be very dedicated and concerted in this program of fair and impartial policing. To apply to more than just the state. And I know the previous director of the Fair and Impartial Policing effort was hired part time, even though he worked full time. And it is still presently less hours than are needed for the full implementation and the expanded approach that that procedure and that program needs to cover all law enforcement officials, not just within the state level, but also the local level. So I think there's much road that needs to be traveled for us to get to where we wish to be on both the state and local level in the area of fair and impartial policing.

[Rev. Mark Hughes (Executive Director, Vermont Racial Justice Alliance)]: K.

[Rev. Arnold Thomas]: We've come a ways. We've come a long ways, but we have a much longer way to go.

[Thomas Oliver (Member)]: Right. I understand. I'm just I'm a law enforcement officer, not at the state level, local level, and I've been very much involved in the training at the Vermont Police Academy. And the requirements for all officers in the state of Vermont are exactly the same. So I I'm I'm wondering if you're just speaking of having a more robust fair and impartial policing program?

[Zachary Harvey (Member)]: Can I ask a question?

[Angela Arsenault (Member)]: Yeah, one second. I'm just wondering how far outside of this constitutional proposition are we going with questioning?

[Thomas Oliver (Member)]: As far as I just went, I guess. That's what I'm trying to decide. I don't know if he understands what And it it was built to take care of people that are

[William Browning (Visiting student)]: included. No, I get that.

[Martin LaLonde (Chair)]: Fair enough. Okay. Isaac, thank you. He needs to be able to ask the question. Go ahead.

[Rev. Arnold Thomas]: I think it's a fair question. And I also feel that people of color do not feel as if the law enforcement officials on either the state or the local level are trained and sensitized enough to be impartial in their administration of their offices, of their respective office. And I think such training needs to be part and parcel of our understanding of what it means to be just and fair and equitable in our treatment of citizens within the state.

[Thomas Oliver (Member)]: Thank you. I appreciate that. Any

[Martin LaLonde (Chair)]: other questions for everyone? Thank you very much again for being here. I really appreciate being able to be here in such a short notice as well. We'll go to Renee McGinnis because I would Renee, So see you've just gotten away or

[Zachary Harvey (Member)]: just gotten away.

[Martin LaLonde (Chair)]: But we'll start with Renee. And Renee, come first, and then we'll have Barbara after Renee. Identify yourself for the record and proceed.

[Renee McGinniss (Policy Analyst, Vermont Family Alliance)]: Renee McGinniss, Vermont Family Alliance Policy Analyst. So Vermont Policy Vermont Family Alliance is a rental rights and minor protections advocacy group. Nate uploaded my testimony from Senate judiciary, which is not exactly right. I have hard copies if anybody wants a hard copy to follow. Hope I have enough. Yeah, I don't know if I have enough because

[Martin LaLonde (Chair)]: Make sure that that gets posted as well. It's already posted.

[Carrie Brown (Executive Director, Vermont Commission on Women)]: Posted. What else?

[Angela Arsenault (Member)]: Yeah, you keep it on the post. Is it

[Martin LaLonde (Chair)]: correct online or no? Hopefully not.

[Renee McGinniss (Policy Analyst, Vermont Family Alliance)]: Is that right?

[Barbara Rachelson (Member)]: I can take one more right here. Yeah. Take one.

[Renee McGinniss (Policy Analyst, Vermont Family Alliance)]: Proposition four, Vermont Family Alliance, we acknowledge there have been many violations of equal rights in the past, And we're not necessarily opposed to an equal rights amendment with broader language as was recommended by Peter Teachout, constitutional law professor, and only if it is equally applied. Our main concern after analyzing Prop four, testimony by constitutional law professor Peter Teachout, and listening to discussions on prop four in both the senate and house judiciary committees in 2024 and 2026 is that the legislature will pass laws that discriminate against biological women, Christians, and traditional families by providing expanded protections to the finite list of state sanctioned historically marginalized populations under section one purpose b, and specifically under gender identity and gender expression and the proposed amendment. Vermont Family Alliance, we are opposed to the passage of prop four by the general assembly to be put before the voters in November 26 for the following reasons. Number one, proposition four presents a finite list of groups that would be protected by laws passed under prop four at the exclusion of other groups. Peter Teachout pointed out that the finite list of protected classes presents interpretive challenges for the courts in his testimony to Senate Judiciary Committee on 01/30/2024. He recommended broader language for the fourteenth amendment of The US constitution as follows. And so in the upload, you'll have a link to Peter Teachout's testimony. I'm not gonna spend time reading everything that he included in his language in the amendment. So I'm gonna go to v. The Senate Judiciary Committee did not take up Teach Out's suggestion for broader language and passed Proposition four out of committee with a finite list of groups. C, Teach Out also stated in his testimony to House Judiciary Committee on 05/01/2024 that, quote, once you start listing protected classes, you raise the question of why the particular types of discrimination are listed and not others. The law has a technical term for this reflected in the Latin maxim, which means that if you include certain classes in a closed list, you mean to exclude others. Because of the way Prop four is currently framed, practitioners and courts will consequently be faced with difficult questions. Are members of the classes specifically listed in the amendment in Prop four the only ones entitled to judicial protection against discrimination? If not, are they entitled to special protections that members of other classes are not entitled to? If neither of those, then what is gained by listing them? Teach Out suggested that if possible, House Judiciary Committee returned prop floor to the Senate to request a quick fix by inserting language on grounds such as to expand protections to all groups of people. He wrote, quote, it is important to remember we are considering the adoption of a constitutional amendment, a fundamental statement of governance that is supposed to guide us over the long term so that while we are doing it, it's important to try to get it right, end quote. The house judiciary committee passed prop four out of the committee, knowing that the language would cause interpretive challenges in the courts because passing prop four within the 2024 timeline was a higher priority than getting language rights. Legislation passed under Prop four that intentionally or consequentially prioritizes the rights and protections of transgender women over biological women will face court challenges. Teachout stated in his 01/30/2024 testimony to Senate judiciary that, quote, the federal standard establishes the floor below which states cannot go, but it does not prevent states from providing greater protections. The limit is when the state law conflicts with federal constitutional law. That is the limitation that Vermont would face if it were to attempt to invoke a newly added equal protection clause as support for adopting affirmative action programs, giving preferences to members of historically disadvantaged groups. In a recent case involving challenges affirmative action admission programs at Harvard and the University of North Carolina, the US Supreme Court ruled that making race a factor in deciding who gets beneficial treatment, whatever the motivation, and whether it serves to advantage or disadvantage a racial minority constitutes a form of racial discrimination prohibited by the Equal Protection Clause in the fourteenth Amendment. So the state to be amended to So if the state constitution were to be amended to include an equal protection clause, that clause cannot be invoked by the state as support for adoption of affirmative action programs that take this form. Since federal law is supreme, all such programs would be vulnerable to challenge under the federal equal protection clause on grounds they constitute impermissible discrimination on the basis of race. Vermont Family Alliance further asserts that any laws that elevate the rights of biological males that identify as female under gender identity and gender expression under prop four will be challenged in as in violation of the fourteenth amendment's equal protection clause. Three, some legislators have already demonstrated they have a mindset to discriminate against some groups under Proposition four. The original 2019 language proposed amendment contained the word religion. It was removed in 2023 and then added back in in 2024, which suggests the likelihood that legislators will not exercise equal protections and laws introduced and passed under prop four, but will actively attempt to discriminate against some groups by expanding protections for the finite list of groups at the expense of others. Or any laws passed under Prop four that expand protections for gender identity and gender expression over biological sex will be challenged as unconstitutional. Any Vermont laws passed under Prop four that bump up against the equal protection clause of the fourteenth amendment of The US constitution and recent SCOTUS decisions such as students for fair admissions. Versus the president and fellows of Harvard will face a legal challenge. Mid Vermont Christian versus Saunders, given the preliminary injunction to allow Mid Vermont Christian back into the Vermont Principals Association, we anticipate a decision in favor of Mid Vermont Christian regarding their participation in both interscholastic sports and town tuitioning. The SCOTUS decision coming in early summer twenty twenty six on whether to uphold state bans on transgender males and girls sports under Title IX will also serve as precedent. We anticipate a decision in favor of upholding state bans and that Vermont individuals and schools will sue Vermont for allowing biological males that identify as females to play in girls' sports and have access to girls' private spaces. Five legislators have failed to disseminate information to the public on Prop four. There were fewer in attendance at the 05/01/2024 public hearing than there were members on the house judiciary committee that hosted the public hearing. And only six people, none of whom were from the general public, testified. Six, quite simply, prop four will give will give the Vermont legislature neither the constitutional upper hand nor the moral upper hand that it is seeking. The Vermont legislature simply should not pass laws that expand protections for a finite list of Vermonters while violating the rights of other groups due to the supremacy clause of The US constitution, the equal protections clause of the fourteenth amendment, and recent SCOTUS decisions. Thank you.

[Barbara Rachelson (Member)]: Thank you very much. Questions for Renee? Barbara Van Zek. Renee, thank you. Good to see you again. So I'm a little confused about why you think in particular biological women and Christians will suffer if this counts as given that religion is listed and sex is listed?

[Renee McGinniss (Policy Analyst, Vermont Family Alliance)]: Well, I think we're seeing the ongoing case now. So I think that's a good example with Mid Vermont Christian School. Think I we're seeing that now, where the girls have actually been discriminated against. Girls basketball team is being discriminated, and that lawsuit is ongoing right now. And just they're being discriminated against because

[Barbara Rachelson (Member)]: it seems like So I guess I'm wondering, in general, I'm hearing sort of a scarcity and kind of like, who gets the scarcity? And I'm just wondering if that's kind of how you're viewing it. Because in general, it seems like if everybody does well, we all do better.

[Renee McGinniss (Policy Analyst, Vermont Family Alliance)]: I guess I don't understand your question. What do

[Barbara Rachelson (Member)]: mean by Well, like when you were saying, if the people on the list are included, the other people aren't included. And you've talked about Harvard, which I know this wouldn't really I guess Vermont schools would fall under this if they're state funded. Assuming that there are winners and losers, why isn't this?

[Renee McGinniss (Policy Analyst, Vermont Family Alliance)]: Because I think we're already seeing examples of winners and losers right now currently with what's going on in Vermont. So girls are being discriminated against in their own sports. There should be girls sports and boys sports because we are biologically built differently. We do not have the same strengths and capacities. So I'm unclear.

[Carrie Brown (Executive Director, Vermont Commission on Women)]: It like a lot

[Barbara Rachelson (Member)]: of things would go to court, but that would necessarily occur. But what I'm worried about is I have so many constituents, and I've had students who have been discriminated against because of their race, because of their religion. They've been hurt in lots of different ways right now. And it seems like there are some really important safety mechanisms and opportunities that could open up by Vermont guaranteeing equal protection under the law.

[Renee McGinniss (Policy Analyst, Vermont Family Alliance)]: Sure. So again, yeah, and my understanding is that Vermont has pretty robust anti discrimination laws. And again, so we're not necessarily opposed to a constitutional amendment. We want to see broader language because your own expert witness on constitutional law recommended broader language twice to both Senate judiciary and House judiciary, which would have lessened any kind of court interpretive challenges and would apply equally to everyone. Yeah, it needs to apply equally to everyone. Again, I would reiterate that what Peter Teachout said is when you have a finite list of groups, legally, what that means is that you intend to exclude other Again, sex and religion are on

[Barbara Rachelson (Member)]: the table, and I would hope that the people you're worried about would be covered because they would guess by their sex or their religion. And I'm very confused about the biological mother part. Like why would we discriminate, where is that, what evidence you have about that? Right now, I know that, for example, the maternal outcomes for people of color in our country are way lower with the number of deaths that happen. So if anything, those are biological mothers that end up having really bad outcomes for themselves and their kids. So I don't see biological moms getting I didn't write biological You had mentioned biological mothers.

[Renee McGinniss (Policy Analyst, Vermont Family Alliance)]: Males. I may have said males. You said mothers. Yeah. No males. Yeah. Sorry if I misspoke.

[Zachary Harvey (Member)]: Renee, thanks for being here. Sure. And I really want to thank you too for your very thoughtful and pragmatic approach to this and also for your advocacy, because I think your voice is one that we don't often hear enough of in this room and

[Martin LaLonde (Chair)]: in this building. I just want

[Zachary Harvey (Member)]: to start by saying thank you. Yeah, thank you. I also just want to say as far as transgender men and transgender women playing in biological male and women sports, there's also a huge safety consideration there. And I think one of the stories that we heard nationwide is in 2022, Peyton McNabb, who's a female, a biological woman playing volleyball, was hurt so severely that she not only dropped out of the sport entirely, but was treated for a concussion after being struck by a transgender man playing in women's volleyball in California. So I just wanna say it's beyond even just the cultural aspects of all of this and clearly what's right and wrong. There's also a safety component to all this. We don't wanna see Vermont's girls getting hurt in their sports. And I think you and I are very

[Renee McGinniss (Policy Analyst, Vermont Family Alliance)]: Thank you.

[Zachary Harvey (Member)]: On that point. One of the questions I have, and again, going back to what the prior representative was just talking about with sex and religion, those aren't really the points that, at least that I'm really contesting. The points, and I see that you and I have similar concerns in your testimony as well, is this around gender identity and gender expression. I'm wondering if you can talk, even double take a little bit further on why it's so important that those terms are clearly defined because of the unconstitutionality constraints that we probably share.

[Renee McGinniss (Policy Analyst, Vermont Family Alliance)]: I'm not so sure with my understanding that those terms could be defined because the books that I see even being read to kindergarteners say that gender is fluid and that you can change your mind all the time. So I don't know that it's possible that those could be nailed down enough constitutionally.

[Zachary Harvey (Member)]: Thank you. And I think that presents a really important point is that if two terms that cannot be clearly defined are being included in the constitutional amendment to the state of Obama, they probably shouldn't be included in the first place. So thank you again for coming today. Thank you.

[Martin LaLonde (Chair)]: Thanks for your testimony.

[Zachary Harvey (Member)]: I think my only question

[Angela Arsenault (Member)]: was number five on yours, the disseminating information regarding the public hearings. I don't really know what the legislature does as far as how we push that information out. I've had the pleasure of getting to do some a number of public hearings with this committee, and some of them are really well attended. Some of them aren't as well attended. So do you have any suggestions or concerns about how these public hearings are particularly disseminated?

[Renee McGinniss (Policy Analyst, Vermont Family Alliance)]: I do, actually.

[Zachary Harvey (Member)]: I

[Renee McGinniss (Policy Analyst, Vermont Family Alliance)]: think it would be helpful to amend the House and Senate rules to include a requirement that these public hearings need to be published into papers and news outlets that are widely circulated across the state. I think if you go to I don't have it off the top of my head. I know there's a requirement, Yeah. Different requirements depending on which biennium the constitutional amendment is in. I think the secretary of state has to publish into Broadly circulated papers to process the state ninety days or something like that before this comes up to vote or ninety days after the adjournment of the session, I don't remember exactly, but I think it would be helpful. If that were in the rules. That's either who has possession of it now, the House or Senate judiciary needs to make sure that this is published a couple of times in major news outlets for people to see that. And then also, I know personally that. You know, legislative newsletters are helpful, And I haven't received too many of those personally from my representatives or senators about what proposition four is all about. Another major concern is that I think people need access to the entire intent. The purpose section of this constitutional amendment, because all they're going to see is the language that they're voting on. I don't think they understand what sentence three means. Senator Hashim stated on the senate floor before they voted this proposal out of the senate floor. He stated that that third sentence specifically relates to reparations. And so people need to know that laws passed in a proposition for are going to cost us money, probably. And we're in a state that already has a bloated budget in a state where people are already financially suffering. So I think people need to be made aware of positives and the negative implications of this constitutional amendment, and they really don't have access to this. Not too many people get to listen in on all the hearings, but they certainly don't get to read the perfect section of the bill. All they see is is the the constitutional amendment on the ballot you could be voting for. So if there's anything that could be added to the rules to make sure that everyone has access to the purpose and intent of constitutional amendments, I think that would be helpful. We're fundamentally changing our constitution. This isn't just a law, it's a big deal. Fundamentally changing how the state government functions, that's a big deal to not be taken lightly.

[Carrie Brown (Executive Director, Vermont Commission on Women)]: Yeah.

[Zachary Harvey (Member)]: I think we can always work to try

[Angela Arsenault (Member)]: to make sure we're getting as many people so it's as better to do.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Thank you.

[Zachary Harvey (Member)]: Thank you very much, Abhin, for being here. Thank you. Thanks,

[Eric Fitzpatrick (Office of Legislative Counsel)]: Thank you.

[Martin LaLonde (Chair)]: So before we go to bar cues, which we'll do in a moment, I'll just point out that one BSA section 144 does have a definition of gender identity. So it is defined in statute. Gender expression? Gender expression is not as fine as me. So, Hughes, over to you. If you could unmute yourself and join us and identify yourself for the record and proceed with your testimony. Thanks for being available today, Mark.

[Rev. Mark Hughes (Executive Director, Vermont Racial Justice Alliance)]: Absolutely. Thanks for having me on. Good afternoon to the committee. It's been a while since I've been here and I know that there was a number of new faces. Just want to read the committee and also thank you for the opportunity. My name is Reverend Mark Hughes and I'm the Executive Director of the Vermont Racial Justice Alliance. I'm pleased to come in and offer you testimony this afternoon on the PR4, the Equal Protection Amendment, what we refer to as the Equal Protection Amendment of the Constitution. So I appear before you in strong support. Proposal for the Equal Protection Amendment to the Vermont constitution. I've worked many years with communities and state partners addressing civil rights and systemic racism and democratic integrity. I want to begin by stating something plainly for the record, and that is that the warning that brought us here was correct. What we anticipated constitutionally and legally and morally has now materialized. And I want to acknowledge the gravity at a moment. I've got a testimony that will go on for a few minutes, maybe fifteen minutes or something like that. I'd like the community to interrupt me at any time. I would prefer to get to the end of the testimony and I'll be happy to answer your questions. But I'm here at the request of the chair. So whatever you're choosing. I want to acknowledge the gravity of the moment and also this committee. I want to state the fact that this committee is not just simply considering a proposal. You're operating at the intersection of a constitutional amendment, federal civil rights collapse, and a long term judicial stewardship, of the state of Vermont. Now, history is going to look back at this moment and, it's not going to be about what we debated. It's going to be about what was secured at this time. So what is brought us here? How did we get here? Well, several years ago, we advanced this amendment because we were following two things. First, Vermont's own trajectory toward equity and justice. And second, the direction of the federal constitutional law. So Vermont has made it pretty clear through action that equity actually matters. I'm gonna use that word equity, but if you care to replace it with the word justice, or instead use the word justice, that's fine too. The trajectory that I want to tell you about is the one that starts with Act 54, which was accomplished in 2017. It was the Racial Disparities in the Criminal and Juvenile Justice Systems Advisory Panel. And to be clear, that was where the Fair and Impartial Policing Policy first, was elevated to the place where it is today. And I, too, sat in those rooms in the creation of the Fair and Impartial Policing Policy with Jim Morrison, as well as the migrant justice folks as well. That policy, what it created, entitled twenty twenty three-fifty eight and two thousand three hundred and sixty six is not just a Fair and Impartial Policing Policy, but also the race traffic stop data. And you will probably see, I've seen an embargoed copy, but you will see a copy of that report drop again yet this week, and you will not be surprised by what you see in that report. Also, the training standards were brought out of that. Something incredibly important happened with this Act 54 that I would ask the committee to be mindful of. In addition to the RDAP, which we refer to as the Racial Disparities in the Criminal and Juvenile Justice System Advisory Panel, whom I know you've probably heard quite a bit from, was also created the Attorney Generals and the Human Rights Commission's Task Force on Racial Disparities in All Systems of State Government. Racial Disparities in All Systems of State Government, written by then Karen, who was the HRC director and David Scher, who's now the deputy at Treasury. That report is on record. It was what do we do about racial disparities in all systems of state government? That was before we developed the language of systemic racism, which was codified the following year in the creation of the Office of Racial Equity or the Director of Racial Equity Board importantly, which was Act Nine in special session of 2018. What would follow is this, the governor having vetoed the first iteration of this, released Executive Order four eighteen, which also creates an office of racial equity in the executive branch. And it still remains on the books today despite the fact that the governor did indeed approve the second iteration because we did give him authority to terminate this person. This executive order remains on the books, executive order four-eighteen. Proposal two, abolishing slavery. Despite Peter Teachout's disagreement that it was a thing to do, we did remove the exception clauses to slavery from the constitution of the state of Vermont, abolishing slavery. I was proposal two, act 33, Health Equity Advisory Commission was created in 2021. That went on to create the office of racial equity and resolution 113 is racism is a public health emergency where it was a joint legislative resolution that remains unrescended that commits the legislature to doing the work of eradicating systemic racism. That's R113. 2021. Act 182, the racial justice data and accountability. I beg your pardon, the Land Access Opportunity Board, which is currently in existence, all of these apparatuses. I would note that in 2022, 88% of the state of Vermonters, This goes towards the absence of folks at public hearings because we must never forget that to amend the constitution, there must be a referendum, a state referendum. 88% of Vermonters voted to abolish slavery in 2022. This was not symbolic. It's a reflection of a shared understanding that truth is the foundation of justice. Now we warned something specific. What we warned is that the statutory progress without constitutional grounding would not survive a hostile turn in federal doctrine. That warning was not validated. That warning is now validated. We're no longer talking about erosion. Are witnessing systemic dismantling of civil rights at the national level. Over the past year, the federal government has neutralized the Department of Justice and the Civil Rights Division. It has weakened the EEOC and the OFCCP. It's dismantled housing enforcement. It's crippled Title VI enforcement, closed environmental justice offices, abandoned remedies for documented discrimination and chilled civil rights policy nationwide. And that's just the tip of the iceberg of where we are with the civil rights apparatus at the federal level. At the same time, the Supreme Court has ended affirmative action, weakened voting rights enforcement, narrowed precedent, and reframed equal protection as abstract neutrality. Let me be clear. This is one of the most hostile federal civil rights environments since the nineteenth century. But we've seen this before. After Reconstruction, the constitutional amendments existed. Enforcement collapsed. Courts narrowed doctrines, and states were left exposed, and equality became symbolic rather than real. History teaches us that when equal protection collapses, democracy collapses with it. Modern discrimination does not operate the way that law assumes. It does not always declare intent. It operates through systems, housing, employment, education, policy, algorithms, systems that appear neutral but produce unequal outcomes. Under current doctrine, intent is required, impact is discounted and structural harm is often invisible. When courts refuse to see impact, they legitimize inequality. That's how equal protection becomes hollow. Now we come to Vermont. Despite all of this, Vermont has no equal protection clause in its constitution. Article seven is not an equal protection clause. It addresses special privilege, not classification based upon discrimination. Using it for this purpose is using the wrong tool. In today's environment, that absence is not academic. It's dangerous. When federal prosecution weakens, states become the last line of defense, the states become the last line of defense. And at this moment, three things matter, judicial independence, constitutional clarity, and moral courage. That is the role before you. Proposal four provides Vermont with a constitutional foundation for equal protection, a foundation. It provides us with independence from federal doctrinal collapse. The ability to evaluate both purpose and effect in capacity to address systemic and algorithmic harm and it provides support for a durable civil rights policy, for any durable civil rights policy. Let me be clear about what it does not do. It doesn't mandate outcomes. It doesn't override federal law and it doesn't eliminate judicial review. It provides clarity and it also, it provides authority. So courts interpret constitutions through text and intent. Courts, that's who interpret constitutions, courts. And Vermont has already declared repeatedly that eradicating systemic racism is a compelling state interest. So I wanna state clearly for the constitutional record here. Proposal four is intended to give constitutional effect to Vermont's determination that eradicating systemic racism is a compelling state interest and to ensure that state action may be evaluated based on both purpose and effect. Now I wanna speak directly to the committee. You're not just reviewing a proposal, you're building a constitutional record, you're shaping judicial interpretation and you're determining whether Vermont acts in time. And time matters. The legislative window is limited, procedural requirements are real and delay is not neutral. Delay determines outcomes. You're gonna hate this, but I'm gonna frame this morally, but I'm a preacher and I think I can get away with this just for a minute. As a Christian minister, I gotta say this, our traditions teach us to defend the folks who are oppressed. Our traditions teach us to care for the most vulnerable. Our traditions teach us to stand in the gap. And they also teach us that silence in the face of injustice is not neutrality, it's complicity. So let's clarify a couple of misconceptions before we get to closing. Let's be clear, equal protection is not special treatment. It's a condition under which the law is legitimate. It's the foundation of democracy. It's the foundation of democracy. And as we see the legacy of slavery, systemic racism, and we understand it, the more clearly we understand it, the more clearly we understand why civil rights were necessary to make this nation a democracy. And as a retired army warrant officer, I believe in that. After Reconstruction this country, it failed to act, and it paid a terrible price. Vermont now has an opportunity to choose differently. In closing, this is not routine. It's not abstract. It's not distant. This is a constitutional moment. And the question is simple. Will Vermont make equal protection explicit? Will it make equal protection durable? And will Vermont make equal protection real? So I urge the committee, act on this proposal for, I'm sure you will receive ample testimony this evening, build a clear disciplined record for this action and vote it out of this committee in the affirmative and ensure that equal protection in Vermont is not just symbolic, not contingent and not left a chance. Stand up, speak out, hold up the shield. Thank you for your careful attention. And I'm prepared to answer any of your questions.

[Martin LaLonde (Chair)]: Thank you, Mark. Zach? Thanks, Mark.

[Zachary Harvey (Member)]: You raised a lot of interesting points. I think I want to first start with maybe a word of caution on maybe the hyperbole about a very emotive landscape that we're currently living in, because I think just like you have a lived experience, I have a lived experience, and so does half the country who did vote for the administration in exactly what we're seeing today. So you might not agree with it, but I think we should all respect it. We should all certainly root for the federal administration's success because they are the governing body in our country. A couple of things. First, you used a new term that I've never heard before in my life, and I like to think of myself as pretty well read, but algorithmic harm. And I'm wondering if you can tell the committee what exactly algorithmic harm is.

[Rev. Mark Hughes (Executive Director, Vermont Racial Justice Alliance)]: No, I can't tell the committee exactly what algorithmic harm is. And I do appreciate your analysis and also your assessment of the, you know, what sounded almost like an admonishment, but I

[Martin LaLonde (Chair)]: I haven't gotten to

[Zachary Harvey (Member)]: the admonishment part.

[Rev. Mark Hughes (Executive Director, Vermont Racial Justice Alliance)]: I'd like to just push back a little bit on that, and then I will tell you what I believe algorithmic is, and just state that, you know, I think, again, it kind of goes to the heart of the point that was made is, is there is intent and then there is harm. And I think the folks who are most harmed are usually most qualified to be able to speak to it. But I do appreciate your analysis. Let's talk about algorithmic. I think where we discovered that was not when we initiated this work, but it was more along the lines of what, when we were going through the process and we were seeing, we were beginning to see some of the outcomes of efforts that were being made to redress some of the harm that was being done, because what we know is it's not by accident that disparities do in fact exist. This is not just quantitatively but qualitatively, you know, and empirically evident that they exist across all systems of social determinants of health, housing, education, employment, racially disparate and adverse outcomes, so we know that. And the question kept coming back, how could that be? You know, is this, here's a charged one, critical race theory? And I think that the more we took a look at it and the more we try it out, I think Justice Gossetz summed it up best. He said, if you're not happy with the outcomes of the Supreme Court, you're welcome to try to figure it out to your state level and amend your constitution if you need to. That's a quote from Justice Gossett. But what we started to see is some of the reasons why these systems are producing disparate outcomes is not because it's racist, you know, that policies are being created in a way that are, you know, where they say, let's just make sure that, you know, the disabilities communities always receive less than, you know, sufficient outcomes. But I think if you take a bunch of factors and connect them together that create various characteristics of what that community represents, you know, I'll just give you some examples. There's their own school lunch program. They live in this neighborhood. In this area code, or zip code rather. There's their own staff. And at some point or another, and I think what we've seen, we've seen this, it's not new, it started happening in the sixties with the Nixon administration. We know that there's record that exists that really spells out the construction of the Southern strategy and how they went from using the N word to just putting together various attributes, multiple attributes that collectively together with pinpoint precision and laser beam focus would literally identify a certain demographic of people. That's an algorithm.

[Martin LaLonde (Chair)]: Okay, I

[Zachary Harvey (Member)]: honestly don't fully understand what you just said at all. And I'm trying to understand, when you say outcomes, because you've used the word outcomes probably no less than three dozen times, is that wealth accumulation? Is it college admissions? Because when you look at college admissions, a white man, just based on data, is less likely to get into Harvard than other populations. So I'm like, what what are the outcomes that you're advocating for?

[Rev. Mark Hughes (Executive Director, Vermont Racial Justice Alliance)]: I'm not gonna entertain that. Do you have any other questions?

[Zachary Harvey (Member)]: Okay. And so whether you entertain it or not, that goes to prove my point that algorithmic harm might sound like a very buzzy catch word, but it actually doesn't mean anything. And the other thing that I would just say is pursuant to house rules, excuse me, Mark, I'm not done. Pursuant to House rules, you actually cannot prescribe motive to members of the House of Representatives. You're creating a sense of urgency, you're declaring complicity for members that don't support Prop four. So what exactly are you accusing us of if we don't support this, which I I do not? Am I complicit Because you're prescribing motive, and that is against house rules. So that is a that's a pure violation.

[Rev. Mark Hughes (Executive Director, Vermont Racial Justice Alliance)]: You're probably characterizing my testimony.

[Zachary Harvey (Member)]: Well, we the beauty of it is that it's all recorded, Mark, and we can watch it back. Yeah. You you've said this multiple times, and and I'm surprised that the chair is allowing this to go

[Martin LaLonde (Chair)]: on because I'm surprised I have allowing people on. You prescribed But it's very urgency,

[Zachary Harvey (Member)]: urgency, and a lack of moral clarity. So what exactly are we being

[Martin LaLonde (Chair)]: accused of? I think that somebody has a first amendment right to be testifying. And so do I

[Zachary Harvey (Member)]: and we're the representatives.

[Martin LaLonde (Chair)]: Talking about rules on on the floor. It's unbelievable. You're talking about rules of

[Rev. Mark Hughes (Executive Director, Vermont Racial Justice Alliance)]: Attacked by a member. I don't mind attacking a member

[Zachary Harvey (Member)]: of the committee. Listen. I'll be lectured. I'm not gonna sit here and be lectured by you, and we will all be judged Sunday, but I'm gonna be judged by my god and not by you, Mark. I mean, that's it is unbelievable, the high horse.

[Angela Arsenault (Member)]: It be possible for us to take a recess?

[Martin LaLonde (Chair)]: Yeah. Well, I think we're just about done.

[Rev. Mark Hughes (Executive Director, Vermont Racial Justice Alliance)]: Unbelievable. About that. I I do appreciate the the the represent the representative's line of question, and and I do also respectfully apologize for any disruption in your committee, Mr. Chair. I am grateful that the testimony is recorded and that you will have the ability to go back to see it. I'm also grateful that Mr. Professor Teachout does, you know, he does also have the ability to speak for himself. So I would also invite you to, you know, invite him so he can use his own voice because I believe he's also been mischaracterized.

[Martin LaLonde (Chair)]: Right, appreciate that, Mark. So that's the last appointments we have today. I know we a bit of time before the public hearing, is at 05:00 in Room 11. So we will see folks then. Can I just alright? So we're off live. I we're adjourned till