SB362: Bill Text

LRB-3401/1

JAM:kjf

2021 - 2022 LEGISLATURE

2021 Senate BILL 362

May 25, 2021 - Introduced by Senators Carpenter, Agard, Erpenbach, Larson, Ringhand, Roys, Smith and L. Taylor, cosponsored by Representatives Spreitzer, Neubauer, Snodgrass, Cabrera, Anderson, Andraca, Bowen, Brostoff, Conley, Emerson, Goyke, Hebl, Hesselbein, Hong, Ortiz-Velez, Pope, Riemer, S. Rodriguez, Shankland, Shelton, Sinicki, Subeck and Vining. Referred to Committee on Government Operations, Legal Review and Consumer Protection.

SB362,2,2 An Act to amend 15.04 (1) (g), 16.765 (1), 16.765 (2), 36.09 (1) (e), 36.11 (3) (a), 36.12 (1), 36.29 (1), 38.04 (13) (b), 38.23 (1), 38.23 (4), 47.02 (3m) (f), 48.82 (1) (a), 48.82 (6), 51.90, 66.0125 (3) (a), 66.0125 (3) (c) 1. b., 66.0125 (9), 66.1011 (1), 66.1201 (2m), 66.1213 (3), 66.1301 (2m), 66.1331 (2m), 66.1333 (3) (e) 2., 86.195 (5) (c), 106.50 (1), 106.50 (1m) (h), 106.50 (1m) (nm), 106.50 (5m) (f) 1., 106.52 (3) (a) 1., 106.52 (3) (a) 2., 106.52 (3) (a) 3., 106.52 (3) (a) 4., 106.52 (3) (a) 5., 106.52 (3) (b), 106.52 (3) (c), 106.52 (3) (d), 106.52 (3) (e), 106.58, 111.31 (1), 111.31 (2), 111.31 (3), 111.321, 111.36 (title), 111.36 (1) (br), 111.36 (1) (c), 111.36 (1) (d) 1., 111.36 (1) (d) 2., 111.36 (2), 111.70 (2), 111.81 (12) (b), 111.85 (2) (b), 118.019 (2d), 118.13 (1), 118.20 (1), 118.40 (4) (b) 2., 194.025, 224.77 (1) (o), 227.10 (3) (a), 230.01 (2) (b), 230.18, 234.29, 321.37, 440.45 (1), 440.45 (2), 452.14 (3) (n), 625.12 (2), 632.35 and 756.001 (3); and to create 106.50 (1m) (kg), 106.52 (1) (cr), 111.32 (7j) and 628.34 (3) (c) of the statutes; relating to: discrimination in employment, housing, public accommodations, education, insurance coverage, national guard, jury duty, and adoption and in the receipt of mental health or vocational rehabilitation services.

Analysis by the Legislative Reference Bureau

This bill prohibits discrimination on the basis of an individual's gender identity or gender expression, which is defined in the bill as an individual's gender-related identity, gender-related appearance, gender-related expression, or gender-related behavior, regardless of the individual's assigned sex at birth or gender identifiers on official documents issued by a federal, state, or local government agency. The bill also make changes to various discrimination laws, including all of the following:

1. Current law prohibits discrimination in employment, housing, and the equal enjoyment of a public place of accommodation or amusement on the basis of a person's sex or sexual orientation. Current law also requires certain state agencies, authorities, and corporations to include provisions in contracts they execute obliging the contractor to similarly not discriminate against any employee or applicant for employment. This bill adds gender identity or gender expression as a prohibited basis for discrimination in these areas.

2. Current law prohibits the University of Wisconsin System, the Technical College System, public elementary and secondary schools, and charter schools from discriminating against a student on the basis of the student's sex or sexual orientation. This bill prohibits the same educational institutions from discriminating against a student on the basis of the student's gender identity or gender expression, and from discriminating against a student based on the protected status of the student's parent. This bill also prohibits the UW System Board of Regents from investing gifts, grants, and bequests in companies that practice discrimination based on sexual orientation or gender identity or gender expression.

3. Current law prohibits the exclusion of an individual from jury duty on the basis of the individual's sex or sexual orientation. This bill adds gender identity or gender expression as a prohibited basis for exclusion of an individual from jury duty.

4. Current law permits only either a single adult or a husband and wife jointly to adopt a child. This bill permits only either a single individual or two individuals married to each other jointly to adopt a child, and also provides that no otherwise qualified person may be denied the benefits of the adoption and guardianship statute subchapter because of the person's sex, sexual orientation, or gender identity or gender expression.

5. Current law requires heads of executive departments and agencies to determine whether there is arbitrary discrimination on the basis of sex or sexual orientation, and to take remedial action if such discrimination is found. This bill requires these heads to also determine if there is discrimination on the basis of gender identity or gender expression, and take remedial action regarding such discrimination.

6. Current law prohibits discriminating against an employee, prospective employee, patient, or resident of an approved treatment facility providing treatment of alcoholic, drug dependent, mentally ill, or developmentally disabled persons on the basis of sex. This bill adds sexual orientation and gender identity or gender expression as prohibited bases of discrimination.

7. Current law prohibits agency rules from discriminating against a person by reason of sex or sexual orientation. This bill adds gender identity or gender expression as prohibited bases of discrimination.

8. Current law prohibits discrimination on the basis of sex in the provision of vocational rehabilitation or mental health services. This bill adds sexual orientation and gender identity or gender expression to the prohibited bases of discrimination.

9. Current law prohibits the national guard or state defense force from denying membership based on sex or sexual orientation. This bill adds gender identity or gender expression as a prohibited basis of discrimination. This bill also provides that no member of the national guard or state defense force may be denied equal access to facilities most consistent with the person's gender identity.

10. Current law provides that sex is a bona fide occupational qualification if all of the members of one sex are physically incapable of performing the essential duties required by a job, or if the essence of the employer's business operation would be undermined if employees were not hired exclusively from one sex. This bill adds to the sex as a bona fide occupational qualification law that an individual may not be treated or regarded inconsistent with the individual's gender identity, or discriminated against based on the individual's gender identity or gender expression.

11. Current law permits public places of accommodation or amusement to provide separate facilities to persons of different sexes. This bill provides that public places of accommodation or amusement may provide separate facilities to persons of different sexes, but prohibits those places from denying individuals equal access to the facilities most consistent with the individual's gender identity.

12. This bill prohibits an insurer from discriminating against an individual on the basis of age, residence, race, color, creed, religion, national origin, ancestry, marital status, occupation, gender identity or gender expression, sex, or sexual orientation, and also prohibits motor carriers, automobile insurers, transportation network companies, and real estate brokers and salespersons from discriminating against an individual on the basis of sexual orientation or gender identity or gender expression.

For further information see the state and local fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

SB362,1 Section 1. 15.04 (1) (g) of the statutes is amended to read:

SB362,4,7 15.04 (1) (g) Discrimination review. In order to determine whether there is any arbitrary discrimination on the basis of race, religion, national origin, sex, marital status or, gender identity or gender expression, as defined in s. 111.32 (7j), or sexual orientation, as defined in s. 111.32 (13m), examine and assess the statutes under which the head has powers or regulatory responsibilities, the procedures by which those statutes are administered, and the rules promulgated under those statutes. If the department or agency head finds any such discrimination, he or she the agency head shall take remedial action, including making recommendations to the appropriate executive, legislative, or administrative authority.

SB362,2 Section 2. 16.765 (1) of the statutes is amended to read:

SB362,4,20 16.765 (1) Contracting agencies, the University of Wisconsin Hospitals and Clinics Authority, the Fox River Navigational System Authority, the Wisconsin Aerospace Authority, the Lower Fox River Remediation Authority, the Wisconsin Economic Development Corporation, and the Bradley Center Sports and Entertainment Corporation shall include in all contracts executed by them a provision obligating the contractor not to discriminate against any employee or applicant for employment because of age, race, religion, color, handicap, sex, physical condition, developmental disability, as defined in s. 51.01 (5), sexual orientation, as defined in s. 111.32 (13m), gender identity or gender expression, as defined in s. 111.32 (7j), or national origin and, except with respect to sexual orientation or gender identity or gender expression, obligating the contractor to take affirmative action to ensure equal employment opportunities.

SB362,3 Section 3. 16.765 (2) of the statutes is amended to read:

SB362,5,15 16.765 (2) Contracting agencies, the University of Wisconsin Hospitals and Clinics Authority, the Fox River Navigational System Authority, the Wisconsin Aerospace Authority, the Lower Fox River Remediation Authority, the Wisconsin Economic Development Corporation, and the Bradley Center Sports and Entertainment Corporation shall include the following provision in every contract executed by them: “In connection with the performance of work under this contract, the contractor agrees not to discriminate against any employee or applicant for employment because of age, race, religion, color, handicap, sex, physical condition, developmental disability, as defined in s. 51.01 (5), sexual orientation, as defined in s. 111.32 (13m), gender identity or gender expression, as defined in s. 111.32 (7j), or national origin. This provision shall include, but not be limited to, the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. Except with respect to sexual orientation or gender identity or gender expression, the contractor further agrees to take affirmative action to ensure equal employment opportunities. The contractor agrees to post in conspicuous places, available for employees and applicants for employment, notices to be provided by the contracting officer setting forth the provisions of the nondiscrimination clause". clause."

SB362,4 Section 4. 36.09 (1) (e) of the statutes is amended to read:

SB362,6,5 36.09 (1) (e) Subject to par. (em), the board shall appoint a president of the system; a chancellor for each institution; a dean for each college campus; the state geologist; the director of the laboratory of hygiene; the director of the psychiatric institute; the state cartographer; and the requisite number of officers, other than the vice presidents, associate vice presidents, and assistant vice presidents of the system; faculty; academic staff; and other employees and fix the salaries, subject to the limitations under par. (j) and s. 230.12 (3) (e), the duties and the term of office for each. The board shall fix the salaries, subject to the limitations under par. (j) and s. 230.12 (3) (e), and the duties for each chancellor, vice president, associate vice president, and assistant vice president of the system. No sectarian or partisan tests or any tests based upon race, religion, national origin, or sex, gender identity or gender expression, as defined in s. 111.32 (7j), or sexual orientation, as defined in s. 111.32 (13m), shall ever be allowed or exercised in the appointment of the employees of the system.

SB362,5 Section 5. 36.11 (3) (a) of the statutes is amended to read:

SB362,6,15 36.11 (3) (a) The board shall establish the policies for admission within the system and within these policies each institution shall establish specific requirements for admission to its courses of instruction. No sectarian or partisan tests test or any tests test based upon race, color, creed, religion, sex, national origin of U.S. citizens or sex a U.S. citizen, disability, ancestry, age, sexual orientation, as defined in s. 111.32 (13m), gender identity or gender expression, as defined in s. 111.32 (7j), pregnancy, marital status, or parental status shall ever be allowed in the admission of students thereto a student to any service, course, program, or facility of the system or any of its institutions.

SB362,6 Section 6. 36.12 (1) of the statutes is amended to read:

SB362,6,23 36.12 (1) No student may be denied admission to, participation in, or the benefits of, or be discriminated against in, any service, program, course, or facility of the system or its institutions because of the student's race, color, creed, religion, sex, national origin, disability, ancestry, age, sexual orientation, as defined in s. 111.32 (13m), gender identity or gender expression, as defined in s. 111.32 (7j), pregnancy, marital status, or parental status of the student or of the student's parent.

SB362,7 Section 7. 36.29 (1) of the statutes is amended to read:

SB362,7,19 36.29 (1) All gifts, grants, and bequests for the benefit or advantage of the system or any of its institutions, departments, or facilities or to provide any means of instruction, illustration, or knowledge in connection therewith, whether made to trustees or otherwise, shall be valid notwithstanding any other provision of this chapter except as otherwise provided in this subsection and shall be executed and enforced according to the provisions of the instrument making the same, including all provisions and directions in any such instrument for accumulation of the income of any fund or rents and profits of any real estate without being subject to the limitations and restrictions provided by law in other cases; but no such income accumulation shall be allowed to produce a fund more than 20 times as great as that originally given. No investment of the funds of such gifts, grants, or bequests shall knowingly be made in any company, corporation, subsidiary, or affiliate that practices or condones through its actions discrimination on the basis of race, religion, color, creed, or sex, gender identity or gender expression, as defined in s. 111.32 (7j), or sexual orientation, as defined in s. 111.32 (13m). Except as otherwise provided in this section, the board may invest not to exceed 85 percent of trust funds held and administered by the board in common stocks. This subsection does not apply to a gift, grant, or bequest that the board declines to accept or that the board is not authorized to accept under this section.

SB362,8 Section 8. 38.04 (13) (b) of the statutes is amended to read:

SB362,7,25 38.04 (13) (b) No person may, on the ground of sex, gender identity or gender expression, as defined in s. 111.32 (7j), sexual orientation, as defined in s. 111.32 (3m), age, race, color, religion, or national origin, be excluded from participating in, be denied the benefits of, or be subjected to discrimination under any program or activity funded in whole or in part with funds made available under this subsection.

SB362,9 Section 9. 38.23 (1) of the statutes is amended to read:

SB362,8,7 38.23 (1) No student may be denied admission to, participation in, or the benefits of, or be discriminated against in, any service, program, course, or facility of the board or any district because of the student's race, color, creed, religion, sex, national origin, disability, ancestry, age, sexual orientation, as defined in s. 111.32 (13m), gender identity or gender expression, as defined in s. 111.32 (7j), pregnancy, marital status, or parental status of the student or of the student's parent.

SB362,10 Section 10. 38.23 (4) of the statutes is amended to read:

SB362,8,12 38.23 (4) Nothing in this section or s. 36.12 prevents institutions from segregating students in dormitories based on sex, except that no person may be denied equal access to the dormitory most consistent with the person's gender identity.

SB362,11 Section 11. 47.02 (3m) (f) of the statutes is amended to read:

SB362,8,20 47.02 (3m) (f) Assure that eligibility for vocational rehabilitation services under this chapter is determined without regard to the sex, gender identity or gender expression, as defined in s. 111.32 (7j), sexual orientation, as defined in s. 111.32 (13m), race, age, creed, color, or national origin of the individual applying for services, that no class of individuals is found ineligible solely on the basis of type of disability, and that no age limitations for eligibility exist which that, by themselves, would result in ineligibility for vocational rehabilitation services.

SB362,12 Section 12 . 48.82 (1) (a) of the statutes is amended to read:

SB362,8,23 48.82 (1) (a) A husband and wife Two adults married to each other jointly, or either the husband or wife spouse if the other spouse is a parent of the minor.

SB362,13 Section 13. 48.82 (6) of the statutes is amended to read:

SB362,9,4 48.82 (6) No otherwise qualified person may be denied the benefits of this subchapter because of his or her the person's race, color, ancestry or, national origin, sex, gender identity or gender expression, as defined in s. 111.32 (7j), or sexual orientation, as defined in s. 111.32 (13m).

SB362,14 Section 14. 51.90 of the statutes is amended to read:

SB362,9,10 51.90 Antidiscrimination. No employee, prospective employee, patient, or resident of an approved treatment facility, or consumer of services provided under this chapter, may be discriminated against because of age, race, creed, color, sex or handicap, disability, gender identity or gender expression, as defined in s. 111.32 (7j), or sexual orientation, as defined in s. 111.32 (13m).

SB362,15 Section 15. 66.0125 (3) (a) of the statutes is amended to read:

SB362,9,22 66.0125 (3) (a) The purpose of the commission is to study, analyze, and recommend solutions for the major social, economic, and cultural problems that affect people residing or working within the local governmental unit, including problems of the family, youth, education, the aging, juvenile delinquency, health and zoning standards, discrimination in employment and public accommodations and facilities on the basis of sex, class, race, religion, gender identity or gender expression, as defined in s. 111.32 (7j), sexual orientation, as defined in s. 111.32 (13m), or ethnic or minority status and discrimination in housing on the basis of sex, class, race, religion, sexual orientation, as defined in s. 111.32 (13m), gender identity or gender expression, as defined in s. 111.32 (7j), ethnic or minority status, or status as a victim of domestic abuse, sexual assault, or stalking.

SB362,16 Section 16. 66.0125 (3) (c) 1. b. of the statutes is amended to read:

SB362,9,25 66.0125 (3) (c) 1. b. To ensure to all residents of a local governmental unit, regardless of sex, race, sexual orientation, as defined in s. 111.32 (13m), gender identity or gender expression, as defined in s. 111.32 (7j), or color, the right to enjoy equal employment opportunities and to ensure to those residents, regardless of sex, race, sexual orientation, as defined in s. 111.32 (13m), gender identity or gender expression, as defined in s. 111.32 (7j), color, or status as a victim of domestic abuse, sexual assault, or stalking, the right to possess equal housing opportunities.

SB362,17 Section 17. 66.0125 (9) of the statutes is amended to read:

SB362,10,15 66.0125 (9) Intent. It is the intent of this section to promote fair and friendly relations among all the people in this state, and to that end race, creed, sexual orientation, as defined in s. 111.32 (13m), gender identity or gender expression, as defined in s. 111.32 (7j), or color ought not to be made tests in the matter of the right of any person to earn a livelihood or to enjoy the equal use of public accommodations and facilities and race, creed, sexual orientation, as defined in s. 111.32 (13m), gender identity or gender expression, as defined in s. 111.32 (7j), color, or status as a victim of domestic abuse, sexual assault, or stalking ought not to be made tests in the matter of the right of any person to sell, lease, occupy, or use real estate.

SB362,18 Section 18. 66.1011 (1) of the statutes is amended to read:

SB362,11,4 66.1011 (1) Declaration of policy. The right of all persons to have equal opportunities for housing regardless of their sex, race, color, disability, as defined in s. 106.50 (1m) (g), sexual orientation, as defined in s. 111.32 (13m), gender identity or gender expression, as defined in s. 111.32 (7j), religion, national origin, marital status, family status, as defined in s. 106.50 (1m) (k), status as a victim of domestic abuse, sexual assault, or stalking, as defined in s. 106.50 (1m) (u), lawful source of income, age, or ancestry is a matter both of statewide concern under ss. 101.132 and 106.50 and also of local interest under this section and s. 66.0125. The enactment of ss. 101.132 and 106.50 by the legislature does not preempt the subject matter of equal opportunities in housing from consideration by political subdivisions, and does not exempt political subdivisions from their duty, nor deprive them of their right, to enact ordinances that prohibit discrimination in any type of housing solely on the basis of an individual being a member of a protected class.

SB362,19 Section 19. 66.1201 (2m) of the statutes is amended to read:

SB362,11,12 66.1201 (2m) Discrimination. Persons otherwise entitled to any right, benefit, facility, or privilege under ss. 66.1201 to 66.1211 may not be denied the right, benefit, facility, or privilege in any manner for any purpose nor be discriminated against because of sex, race, color, creed, national origin, gender identity or gender expression, as defined in s. 111.32 (7j), sexual orientation, as defined in s. 111.32 (13m), or status as a victim of domestic abuse, sexual assault, or stalking, as defined in s. 106.50 (1m) (u), or national origin.

SB362,20 Section 20. 66.1213 (3) of the statutes is amended to read:

SB362,11,20 66.1213 (3) Discrimination. Persons otherwise entitled to any right, benefit, facility, or privilege under this section may not be denied the right, benefit, facility, or privilege in any manner for any purpose nor be discriminated against because of sex, race, color, creed, national origin, gender identity or gender expression, as defined in s. 111.32 (7j), sexual orientation, as defined in s. 111.32 (13m), or status as a victim of domestic abuse, sexual assault, or stalking, as defined in s. 106.50 (1m) (u), or national origin.

SB362,21 Section 21. 66.1301 (2m) of the statutes is amended to read:

SB362,12,3 66.1301 (2m) Discrimination. Persons entitled to any right, benefit, facility, or privilege under ss. 66.1301 to 66.1329 may not be denied the right, benefit, facility, or privilege in any manner for any purpose nor be discriminated against because of sex, race, color, creed, national origin, gender identity or gender expression, as defined in s. 111.32 (7j), sexual orientation, as defined in s. 111.32 (13m), or status as a victim of domestic abuse, sexual assault, or stalking, as defined in s. 106.50 (1m) (u), or national origin.

SB362,22 Section 22 . 66.1331 (2m) of the statutes is amended to read:

SB362,12,11 66.1331 (2m) Discrimination. Persons otherwise entitled to any right, benefit, facility, or privilege under this section may not be denied the right, benefit, facility, or privilege in any manner for any purpose nor be discriminated against because of sex, race, color, creed, national origin, gender identity or gender expression, as defined in s. 111.32 (7j), sexual orientation, as defined in s. 111.32 (13m), or status as a victim of domestic abuse, sexual assault, or stalking, as defined in s. 106.50 (1m) (u), or national origin.

SB362,23 Section 23. 66.1333 (3) (e) 2. of the statutes is amended to read:

SB362,12,19 66.1333 (3) (e) 2. Persons otherwise entitled to any right, benefit, facility, or privilege under this section may not be denied the right, benefit, facility, or privilege in any manner for any purpose nor be discriminated against because of sex, race, color, creed, national origin, gender identity or gender expression, as defined in s. 111.32 (7j), sexual orientation, as defined in s. 111.32 (13m), or status as a victim of domestic abuse, sexual assault, or stalking, as defined in s. 106.50 (1m) (u), or national origin.

SB362,24 Section 24. 86.195 (5) (c) of the statutes is amended to read:

SB362,13,2 86.195 (5) (c) Conformity with discrimination laws. Each business identified as a motorist service on a specific information sign shall, as a condition of eligibility for erection, installation, and maintenance of a sign under this section, give written assurance to the department that the business conforms with all applicable laws concerning the provisions of public accommodations without regard to race, religion, color, sex, sexual orientation, as defined in s. 111.32 (13m), gender identity or gender expression, as defined in s. 111.32 (7j), or national origin.