State bias protections remain on hold

A bill to protect Arkansans from discrimination based on their sexual orientation or gender identity could take more than a year to resurface in the General Assembly, local legislators say.

State Rep. Greg Leding, D-Fayetteville, last year introduced a bill adding sexual orientation and gender identity to the state’s Civil Rights Act, the 1993 law that declares state residents have the right to vote, hold a job and otherwise participate in society without regard to their race, religion, national origin, gender or disability. Leding’s bill died in the House Judiciary Committee in April without a vote.

Leding said he wouldn’t bring the bill back during this year’s General Assembly session, which is a fiscal session devoted to state budgets. Legislators can bring up any other concerns only with the agreement of two-thirds of the House and Senate.

“It’s not a surprise that there’s quite a lot of hostility toward that piece of legislation,” he said Wednesday, adding he wants to keep the session focused on budgets. “Right now we’re just kind of in stasis.”

The state lacks a law explicitly banning employers and landlords from firing, evicting or otherwise discriminating against an employee or customer who is gay, bisexual or transgender.

By creating such a law, Leding’s bill could partly clear up the ongoing lawsuit against Fayetteville over its Uniform Civil Rights Protection ordinance, which voters approved in September. The ordinance prohibits the same kinds of discrimination as Leding’s bill would while exempting “churches, religious schools and daycare facilities, and religious organizations of any kind.”

Ordinance opponents sued city officials in August in Washington County Circuit Court, claiming the law was improperly referred to voters, infringes on the religious right to oppose homosexuality and can’t be enforced under last year’s Act 137, which prohibits local governments from enacting civil rights protections “on a basis not contained in state law.”

The city disputes those claims, saying other state laws give the needed basis and, if they don’t, Act 137 should be found unconstitutional. City Attorney Kit Williams and Arkansas Attorney General Leslie Rutledge have sparred over Act 137’s constutionality in a series of court briefs; Rutledge says the act had a legitimate and rational intent to keep discrimination laws the same across the state.

The next hearing in the case hadn’t been set by Friday but could come in the next few weeks.

Notwithstanding the city’s arguments, a bill like Leding’s would give a clear basis “contained in state law” for ordinances like Fayetteville’s.

Another bill like Leding’s failed to gain traction in 2005, and opposition remains strong in the General Assembly, said State Sen. Bart Hester, R-Cave Springs, who introduced Act 137.

“I would say a supermajority of the legislature feels this way” and opposes a bill like Leding’s, he said Thursday.

Protecting sexual orientation and gender identity would be unfair to businesses and landlords for multiple reasons, Hester said.

First, the addition would make the civil rights law unnecessarily complicated, Hester said.

The law against gender discrimination basically should cover orientation and identity as well, he said. The U.S. Equal Employment Opportunity Commission agrees, pointing to several federal court decisions along those lines, though the U.S. Supreme Court hasn’t definitively ruled on the question.

“Not one example was put in front of us of someone who was denied a job or a home or something due to their sexual orientation,” Hester added. “All it does is it leads to speculation and assumption when someone feels they were discriminated against.”

Hester also said “somebody can change their mind this afternoon” about their orientation or identity, making it more difficult for employers to deal with. Despite this concern, the American Psychological Association and other professional groups say orientation and identity aren’t chosen and can’t be safely or effectively changed.

Leding hoped to hold an interim study on the bill for the committee in the fall, with meetings about the history of the Civil Rights Act and why adding sexual orientation and gender identity is needed.

A survey of about 1,000 gay, bisexual and transgender Arkansans by the Washington-based advocacy group Human Rights Campaign found one-fourth experienced workplace discrimination, and more than one-third reported workplace harassment.

The interim meetings didn’t happen, Leding said.

“I backed off, unfortunately, for some of the same reasons I backed away from the bill during the session,” he said, adding he still hopes to hold the study before the 2017 session.

Eureka Springs has a law like Fayetteville’s, and Little Rock, Hot Springs and Pulaski County have versions generally limited to their employees and contractors.

Back in August, State Rep. Clarke Tucker, D-Little Rock, said the aim of Leding’s bill could be achieved by amending the state’s Religious Freedom Restoration Law to bar discrimination against gay or transgender people while explicitly exempting pastors and other religious officials from having to perform same-sex marriages. Religious officials are free to refuse any marriage, but some advocates have worried that freedom could be eroded.

“If I do it, I would like to come at it from both sides,” Tucker said of the proposal Wednesday.

Even a mixed measure might face opposition, but Tucker said he saw reason to be optimistic in the November 2015 Arkansas Poll, an annual survey by University of Arkansas researchers. It found while most of the 800 voters polled opposed same-sex marriage, roughly three-quarters supported equal rights for gay and lesbian people in housing and jobs.

“So it looks to me like the people of Arkansas — I think they support the same balanced approach that I’m talking about where we do believe in religious freedom,” Tucker said, adding he hopes to work on the bill before the 2017 session. “Hopefully we can build enough support between now and then to make something happen.”

Arkansans’ political view

Arkansas Poll, November 2015 The 17th annual Arkansas Poll from the University of Arkansas polled a random sample of 800 adults on several questions, including opinions about rights for gay and lesbian people.

Question Yes No Don’t know/refused

Do you think same-sex marriages should be recognized? 29 percent 63 percent 8 percent Do you think gays and lesbians should have equal rights in housing? 72 percent 19 percent 9 percent Do you think gays and lesbians should have equal rights in jobs? 79 percent 13 percent 8 percent

Source: The Arkansas Poll

Dan Holtmeyer can be reached at [email protected] and on Twitter @NWADanH.

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