What Difference a Law Can Make

Historian Dick Wagner delves into the history of Wisconsin’s groundbreaking sexual orientation non-discrimination law, its shortcomings and achievements, and the people that helped see it enforced.

Signing of AB70 into law by Governor Lee Dreyfus (R), 
February 1982. Left to right: Leon Rouse, Governor Dreyfus, David ClarenbachSigning of AB70 into law by Governor Lee Dreyfus (R), February 1982. Left to right: Leon Rouse, Governor Dreyfus, David Clarenbach

When Wisconsin passed the first-in-the-nation gay rights bill in 1982, what did the victory mean? Yes, it was a vote by the Legislature that sexual orientation could not be a legal basis for discrimination in the state, but would it affect the lives of ordinary gays and lesbians? Does anybody listen when the Legislature acts? No one was sure what the dimensions of enforcing the new law on sexual orientation would be.

The only real prior experience in the state was the City of Madison, which had an ordinance on non-discrimination on the basis of sexual orientation since 1975. For its 1981 fiscal note on the gay rights bill the Equal Rights Division looked to at experience. They found the city averaged 1% of its 584 employment cases and 2% of its housing cases over sexual orientation.

Two assumptions were put in the fiscal estimate. One, “Madison is somewhat more of a liberal-minded community and hence probably not as likely to discriminate against persons on this basis.” Two, “while many persons may be discriminated against because of their sexual orientation, these persons may fear attracting public attention to themselves by filing such a charge and thus do not file.”

The resulting state fiscal estimate, for the 20 employment cases and one housing case that could be expected annually, “can be absorbed within current budget.”

A Champion for Enforcement of the Law  

Fran Tryon, Administrator of the Equal Rights Division and an African-American woman, was charged with enforcing Wisconsin’s new non-discrimination statute. She spoke on April 23, 1983 to the first meeting of the new Governor’s Council on Lesbian and Gay Issues. This was one year after passage.

She reported working with the Wisconsin Lesbian/Gay Network (WLGN) based in Stevens Point on outreach efforts about the new law. Tryon said, “I ask you to be patient if you come into our agency to file a complaint…recognize that we are ignorant [on the issue of lesbian and gay rights] and help to educate us. Make us more sensitive. Make us do our job.”

She observed there already was a tendency to settle the early complaints based on sexual orientation rather than go to the formal hearing mechanism. Regarding that there were so few complaints based on sexual orientation during the first year, she speculated, “The public just isn’t aware of the law yet. In time…the complaints will rise, as happened with other equal rights matters.” Tryon indicated that we “receive many more calls and inquiries regarding this part of the law,” than just the actual complaints.

Tryon, described as the “spunky head of the ERD,” was appointed by Governor Lee Sherman Dreyfus and continued by Governor Tony Earl. A graduate of Beloit College and a trained psychologist, she characterized herself, “by avocation, I’m somewhat in the activist mold.”

Despite a charge by equal rights law to work on conciliation for complaints, in her clear view, ERD was not a social agency but an enforcement agency. She did not see any inconsistency in being objective and being an advocate. She felt ERD examiners had to level the field when the party being complained about showed up with attorneys. Tryon was worried about dealing with the new sensitive area of sexual orientation: “I think that most of us are homophobic, if we’re heterosexual,” she noted.

Tryon planned consciousness raising for ERD staff. Earlier in 1981, after Dane County enacted protections based on sexual preference, Charles Matthews, the county’s Affirmative Action Director and a gay Black man, contracted with Ron Somers, another gay man, for non-discrimination training for Dane County employees.

Tryon knew her law well. When an issue about an anti-gay ad appeared in the Stevens Point Journal she was clear. Speaking to the Equal Rights Council, she said, “The ad does not say gays cannot find housing or employment.” Further, “So this is a tacky, tacky ad but I don’t believe it violates the law.”

Tryon expanded on her views of civil rights enforcement. “People say you can’t legislate morality, you can’t legislate and make people change. All I care about is that their behavior changes.” When asked about civil rights work, she explained, “I don’t see civil rights legislation as a panacea, but it’s a hell of a good start. Without it, I’d still be back on the massa’s plantation. And lord knows, that would never do.”

She said legislation means “probably nothing, until such time that they can see that it is law, that it’s being enforced.” Her early observation about discrimination complaints was, “It’s like pulling hen’s teeth to get someone to say it’s on the basis of sexual orientation…. Even when asked directly, callers often hesitate to identify themselves as homosexuals.”

In her usual, straightforward manner, she said, “We do not have to declare we are Black, or we are women [in filing a complaint]. People have to declare they are gay or lesbian.” A particular concern of Tryon’s was that the public accommodations section of Wisconsin nondiscrimination law was weak, with District Attorneys bearing the burden of prosecuting cases. She became an authority on describing Wisconsin’s first-in-the-nation law on sexual orientation and was asked to testify at a Michigan legislature committee’s hearing.

In the Trenches of Enforcement  

Another stalwart in the Equal Rights Division was LeAnna Ware, whose more than 30-year career began at investigator and peaked at high-level administration. In the late 1970s from inside the Department she supported adding sexual orientation to Wisconsin’s law. At the time she was told it was a “ridiculous idea,” and her supervisor then said “such protections could never be added to the law.”

Her professional career included investigating the very first complaint under the new gay rights law. When discussing enforcement of the first years under the new law she had firsthand experiences of gays and lesbians “not eager to say which protected classes” they were. They often denied that their employer actually knew they were gay.

She worked with The United to provide training to Equal Rights staff. The Milwaukee office of the Division was a little slower in coming around, she observed. It was more difficult for the male staff, who felt somewhat threatened, than with females. Overheard language was, “I’m not investigating that complaint, you can.”

WLGN was enlisted for a new brochure on the non-discrimination law. The Division tried to use plain language. Under basis for complaint one form listed “sexual orientation—homosexual.” The Division conducted labor law clinics to make employers aware of the Fair Employment Law. Ware observed it was very rare for any questions to arise about sexual orientation. Ware was also active with the Madison Equal Opportunities Commission. She was subpoenaed into Federal Court by the City of Denver when they challenged the Colorado state ban on local laws regarding non-discrimination on the basis of sexual orientation. When that state’s Attorney General asked if it was not tough to enforce the Wisconsin law, her answer was a resounding “no.” She ended her career as Director of the Equal Rights Division. In 2007 she was recognized by Outreach as the Ally of the Year.

Early Enforcement Data   

The gay rights bill applied to state government as well as private employment. When the 1983 bill proposing repeal of gay rights surfaced, the state Personnel Commission, with jurisdiction over state employment, noted in its fiscal estimate it had 200 complaints in the past year and approximately only 1% had been based on sexual orientation.

In the first year of the new law there were 16 complaints filed under sexual orientation with the Equal Rights Division. Most were in the area of employment and a few in the area of public accommodation. For comparison, at the end of the decade a Legislative Audit Bureau study on the fiscal year 1987–88 showed a total of 2,741 complaints for all causes, up from 1,935 in 1980. Complaints based on sexual orientation were 1.4% of total complaints. It stayed at this level for quite some time. A review of six years from 1997 to 2002 showed sexual orientation at 1.3% of all complaints.

A later survey showed the majority of all the equal rights sexual orientation complaints (55%) came from the urban areas of Madison and Milwaukee, though their counties only made up 25% of the state’s population. Milwaukee County, with 18% of the population, made up 37% of the sexual orientation complaints; and Dane County, with 8%, made up another 19%. Of all complaints, the 1988 audit noted probable cause was found in 24% of instances, no probable cause in 36%. Another 10% were settled, and the remaining were withdrawn or failed for a lack of jurisdiction. Presumably sexual orientation complaints followed this pattern, too.

High-profile Cases  

A number of discrimination cases became high profile. In 1983, Lake Geneva Country Club fired assistant Chef James Taylor, a gay, Black man, the day after he appeared on a Milwaukee TV news report on “Gays in Milwaukee.” LeAnna Ware was the investigator for the complaint. She determined probable cause because the employer, while claiming unsatisfactory performance, had no documents on his job performance.

Taylor, originally from California, said, “Being Black and gay in the Midwest, I thought I had a snowball’s chance in hell of winning my case.” The ERD worked to conciliate the matter, and reach a settlement.

When The United sought to run a classified job add with The Milwaukee Journal for an education/outreach coordinator to “work primarily with gay men,” the business office required a detailed written explanation of the organization’s purpose. ERD found probable cause over the ad’s refusal and the matter was referred for conciliation. Eventually the United accepted a $400 settlement for attorney’s fees.

The Green Bay Press-Gazette also had discrimination complaints filed against it. The paper turned down an ad from Among Friends, the rural gay referral agency. The paper claimed the organization was a dating service. When the resubmitted ad specifically said, “Gay/lesbian referrals for medical, legal, and professional assistance,” it was still refused. The ERD found probable cause for discrimination. Since newspapers fell under the public accommodations section of the law, prosecution was up to the Brown County District Attorney who declined to pursue. The paper subsequently also refused an ad by two women selling gay/lesbian T-shirts. An ad taker said, “We just don’t print those kind of ads.”

A bowling alley in Eau Claire refused to allow two gay men to dance in their associated bar, the Down Under Disco, but had no problem with two lesbians “because bowlers did not complain when two women went on the dance floor.” Again ERD found probable cause and referred the matter to the District Attorney. While this particular DA had supported the gay rights law, he declined prosecution of what he termed a “bad case.”

“Any prosecutor who would take this case would be putting his neck on the line,” he said. Tryon had identified the enforcement of public accommodations by district attorneys as one of the weaknesses of Wisconsin law for all classes of protected citizens. In 1986, an informal opinion of the Attorney General indicated that classified advertising was not a public accommodation, forcing ERD to reverse itself. Perhaps discretion by outstate DAs was warranted, as who knew how elected judges might rule on a groundbreaking law.

Some discrimination matters did not enter the statistics on complaints. When a newly hired professor’s real estate agent told the dean of a state university that the professor was gay the dean requested the professor’s resignation. “The professor was unwilling to file a formal complaint for fear of its impact on his future job prospects, but after Tryon informed the dean that his request for the professor’s resignation violated state law, the dean withdrew the request.”

So, Did the Law Work?  

Brooks Edgerton, editor of OUT!, saw the difficulties: “The risks gays take to file a complaint are too high.” One had to reveal their identity, pay a lawyer, and wait months. “The penalties are pathetic. You fight for a shot at getting back where you were two years ago.”

The law did not provide for any great damages. Yet, a 1983 news story found this writer expressing optimism: “The law has to be more than mere words on paper. It has to provide real protection to people in small towns in this state.” Eventually, job security for gays and lesbians would outweigh the climate of fear.

Other Wisconsin observers felt the law had been helpful and a number of homosexuals did win settlements from the conciliation process. Another Brooks Edgerton judgment was, “All told, the gay rights bill has strengthened the hand of the lesbian/gay community. It has provided a strong tool for organizing, and many community leaders expect that its use—direct or indirect—will grow in years to come.”