Fayetteville Voters OK Law Protecting Gender Identity, Sexual Orientation Rights

An ordinance providing legal rights based on sexual orientation and gender identity was approved by Fayetteville voters in a Tuesday (Sept. 8) special election. The unofficial tally was 52.7% for the ordinance, or 7,666 votes for and 6,860 votes against.

The Uniform Civil Rights Act – aka, Ordinance 5781 – was pushed by Alderwoman Adella Gray after the original Ordinance 119 went down in defeat in a December 2014 special election when 51.6% of voters rejected it. The goal was to address the issues that led to the defeat of Ordinance 119, especially the confusing language.

“I am really impressed to see our community come together after the divisive 119 fight and pass ordinance 5781,” Kyle Smith, FOR Fayetteville campaign chairman, said in a statement after the vote results were announced. “It turns out that local solutions work best.”

Continuing, Smith noted: “We started from a small group of folks who wanted to see a nondiscrimination ordinance pass after 119 was defeated. Through the drafting process and then after the city council decided to put 5781 to a vote, I was amazed at how our campaign grew with more and more local volunteers and donors pitching in every day. We had substantially fewer resources this time, but ran a much better and more positive campaign this time.”

Repeated efforts by The City Wire to contact the group opposed have been unsuccessful.

Specifically, the new ordinance provides legal protections “for persons on the basis of gender identity and sexual orientation should also be protected by the City of Fayetteville to prohibit those isolated but improper circumstances when some person or business might intentionally discriminate against our gay, lesbian, bisexual and transgender citizens …”

Protect Fayetteville was formed to oppose the ordinance. Reasons this group cited in soliciting no votes including the following:

• The “religious exemption” applies to buildings, not people. It’s not for people, it’s for buildings. People of faith are not exempt and could lead to people of faith to be persecuted for their beliefs;

• The ordinance is dangerous for women and children and businesses, Just as in Chapter 119, the law demands that businesses allow men, who claim to be women, to enter female bathrooms, locker rooms, showers, and shelters. Public schools are not exempt;

• Business owners may face prosecution and be subject to civil lawsuits. Business licenses can be revoked in a matter of days;

• The ordinance creates a tribunal commission, outside the due process of law, designed only for gays and transgenders – not for heterosexuals, ethnic groups, veterans, disabled, people of faith, etc., thus possibly denying Constitutional rights; and

• The commission is biased at its inception requiring that at least one openly gay individual serve on the tribunal. No other criteria for being appointed to the commission are mentioned.

• The opposition group also says if Ordinance 5781 is approved by voters the city council could amend it and take away the exemptions, increase punishments, and expand the definition of sexual orientation.

ORDINANCE SUPPORTERS
FOR Fayetteville was formed to push for passage of Ordinance 5781. The Fayetteville Chamber of Commerce also endorsed the proposed ordinance, reversing its stance on the original Ordinance 119.

“There were 14 specific things in the first ordinance that we believed would make bad policy,” said Chamber President Steve Clark. “These 14 things have been addressed in a favorable way, either corrected or eliminated, in the ordinance. … In the spirit of the issue, Fayetteville is a diverse, welcoming city and that’s a strong message for economic development.”

Also active in supporting the new ordinance was Fayetteville Mayor Lioneld Jordan.

Key points, according to the FOR Fayetteville website, include:

• The ordinance creates a multi-stage complaint resolution process that provides opportunities to correct violations without prosecution;

• Clearly defines gender identity and sexual orientation, and applies those definitions in identical manner to state-level protections for other criteria without redefining existing protections. Socio-economic background is not included;

• Definition of discrimination is based on the Arkansas Civil Rights Act and Fair Housing Act;

• Applicability and exemptions are taken from the Arkansas Civil Rights Act and Fair Housing Act. Also, churches, religious schools/daycares and religious organizations of any kind are completely exempt; and

• Establishes a commission comprised of citizens with relevant experience to hear complaints and establishes the procedure for filing complaints.

ORDINANCE ENFORCEABILITY
There is some uncertainty about the ability of the city to enforce the new ordinance. Arkansas Attorney General Leslie Rutledge (R) issued an opinion on Sept. 1 saying the proposed ordinance was “unenforceable” because of Act 137 approved in the recent Arkansas legislative session.

The primary language in Act 137, known as the “Intrastate Commerce Improvement Act,” finds: “A county, municipality, or other political subdivision of the state shall not adopt or enforce an ordinance, resolution, rule, or policy that creates a protected classification or prohibits discrimination on a basis not contained in state law.”

“Act 137 renders unenforceable any ordinance that prohibits discrimination on a basis not already contained in state law. Because current state law does not prohibit discrimination on the basis of sexual orientation or gender identity, it is my opinion that Act 137 renders the five ordinances unenforceable in this respect,” she noted.

Danielle Weatherby, an executive committee member with FOR Fayetteville, the group pushing for voter approval of Fayetteville Ordinance 5781, said the AG’s opinion carries no legal weight.

“Many attorneys in Arkansas have reached a different opinion on Act 137,” Weatherby said.