Fayetteville City Council member Adella Gray will announce tomorrow a new city civil rights ordinance for discussion at the City Council meeting at 5:30 p.m. Tuesday. A vote on the ordinance to extend work, housing and public accommodation protection on the basis of sexual orientation and gender identity would be the following week, June 16. It would not take effect unless approved by voters at a special election Sept. 8.
Gray says the Fayetteville Chamber of Commerce and its leader, Steve Clark, will be at the news conference to announce the organization’s support for this ordinance, co-sponsored by Alderman Matthew Petty. The Chamber was a a key opponent to the earlier ordinance repealed by voters. Gray says Clark’s son-in-law, Justin Tennant, is a supporter of this version of the ordinance. He was one of two votes against the last ordinance, passed by the Council 6-2. Voters repealed it 52-48, in a vote marked by some confusion over how the issue was phrased on the ballot.
Said Gray: “It needs to be done.” She had kind words for the Chamber of Commerce. She said she believed the organization always wanted to find a way to support it, despite its vigorous assertion that the first ordinance was bad for business.
It’s a wide-ranging ordinance like one adopted earlier by the Council and then repealed by voters after a petition drive led by conservative church groups, some from outside the city, including the notable robocalling of Michelle Duggar, who raised the issue of molestation of children by transgender people. Whether her family’s recently involvement in a molestation case within their own family will discourage her participation again isn’t yet known, though she continues to stand by her fears on the issue.
Though the ordinance is similar in impact, it has many changes, Gray said. It’s the work of a committee of some 14 lawyers who started coming together after the election defeat. She said this ordinance is shorter and clearer and modeled closely after the terminology of other state and federal laws. The commission to consider complaints is a big change, where before a single city official would have considered complaints. It includes two business people, two people in rental real estate, one person with human resources or employment law background and two at-large members, including at least one person who identifies as lesbian, gay, bisxesual or transgender. Mediation will be the first course after a complaint. But if it can’t be resolved, the commission will hear complaints and can ultimately fine violators — $100 for a first offense. But the ordinance specifies that a violation is not a misdemeanor or felony offense, thus not a criminal record.
The ordinance exempts churches, religious schools and religious organizations, but is silent on the divisive issue of restroom facilities, a flashpoint that the earlier ordinance tried unsuccessfully to address.
The ordinance includes from the beginning a referendum of the ordinance to voters at a special election Sept. 8.
The materials prepared by Gray include a letter from City Attorney Kit Williams that cites Little Rock City Attorney Tom Carpenter’s legal analysis of a recently adopted Little Rock ordinance that extended legal protection to city employees on sexual orientation and gender grounds and also applied non-discrimination guidelines to those seeking city business.
The Fayetteville ordinance, though it goes much farther, also should not run afoul of the legislature’s effort to prevent local civil rights ordinances, Williams said, because several parts of state law provide protection for sexual orientation and gender identity, even though the main civil rights law does not. Sen. Bart Hester’s effort to prevent local ordinances said they couldn’t be adopted to cover categories not already covered in the law. Carpenter has also noted the equal protection provision of the Arkansas Constitution, which has been the basis for Supreme Court rulings invalidating other laws that discriminated against LGBT people.
Williams said he expected opposition to the ordinance and, if it is adopted, expected a lawsuit would be filed afer Hester’s state law takes effect in July. He said that while opponents might advance “reasonable legal arguments” he believed that Carpenter has the “better argument” that ordinances such as Little Rock’s and the one proposed by Gray and Matthew Petty are legal.
Note the title: An ordinance to ensure uniform nondiscrimination protections within the city of Fayetteville for groups already protected to varying degrees throughout state law.”
Since the state law was passed, Eureka Springs, Little Rock, Pulaski County and Garland County have passed civil rights measures of varying degrees. Hester, who lives in Cave Springs, has not been happy about it. Supporters of equal rights knew as his legislation was moving that aspects of state law provided an escape clause from the bill as he wrote it, though the constitutional argument was always present and remains an obstacle for any future attempts by the legislature to shut down home rule on civil rights.
Fayetteville City Council meetings can be viewed on the city’s website.