FAYETTEVILLE -- Fayetteville is not the first place where a proposal to ban discrimination based on sexual orientation and gender identity has ignited intense public debate.
But it will become the first Arkansas city with a ban in place if aldermen approve an ordinance up for its third and final reading Tuesday.
Fayetteville City Council
When: 5:30 p.m. Tuesday
Where: Room 219, City Administration Building, 113 W. Mountain St.
On the Agenda: A proposal to prohibit discrimination in employment, housing and public accommodations based on someone’s sexual orientation and/or gender identity. The proposal would also create a municipal civil rights administrator position.
Watch Online: Accessfayetteville.org.
Source: Staff Report
Go to the online version of this story at nwaonline.com to read a copy of the proposed Civil Rights Administration ordinance.
At A Glance
The proposed Civil Rights Administration ordinance defines the following terms:
• Civil Rights Administrator: The person designated by the mayor to receive, investigate and conciliate complaints
• Discrimination: Any act, policy or practice that has the effect of subjecting any person to differential treatment as a result of that person’s real or perceived race, ethnicity, national origin, age (if 18 years of age or older), gender, gender identity, gender expression, familial status, marital status, socioeconomic background, religion, sexual orientation, disability or veteran status
• Familial Status: An individual’s status as parent or legal guardian to a child or children below the age of 18 who may or may not reside with that individual
• Gender Identity: A person’s gender-related identity, whether or not that identity is or is perceived to be different from that traditionally associated with the sex assigned to that individual at birth
• Gender Expression: A person’s gender-related appearance and behavior whether or not that gender expression is or is perceived to be different from that traditionally associated with the person’s assigned sex at birth
• Place of Public Accommodation: Inns, taverns, hotels, motels, restaurants, wholesale outlets, retail outlets, banks, savings and loan associations, other financial institutions, credit information bureaus, insurance companies, dispensaries, clinics, hospitals, theaters, recreational parks and facilities, trailer camps, garages, public halls and all other establishments within the city which offer goods, services, accommodations and entertainment to the public
• Sexual Orientation: Actual or perceived heterosexuality, homosexuality or bisexuality
Source: City Of Fayetteville
According to the Human Rights Campaign, a national advocate for lesbian, gay, bisexual and transgender equality, employers are prohibited from firing or refusing to hire someone because of their sexual preference or gender identity in more than 200 municipalities and 18 states.
The policies in other areas haven't come without controversy.
A June city council meeting in Billings, Mont., began at 6:30 p.m. and ended well after sunrise, according to media reports. The Billings City Council ended up rejecting its nondiscrimination ordinance by a 6-5 vote.
After more than two years of discussion by multiple committees, members of the Springfield, Mo., City Council are still grappling with what to do about possible changes to several of the city's nondiscrimination policies.
"This issue has probably generated the most questions and feedback of any others over the last 10 years," Cora Scott, Springfield public information and civic engagement director, said Thursday.
In Fayetteville, a proposed Civil Rights Administration ordinance was introduced by Alderman Matthew Petty last month. During the proposal's second reading Aug. 5, more than 100 people packed the City Council chambers. The vast majority of those who addressed aldermen at the meeting spoke against the proposal.
They criticized the would-be ordinance as government overreach and an unnecessary infringement upon residents' religious beliefs.
Supporters said protections are needed for residents of all stripes.
"Fayetteville has a history of doing the right thing," Petty said. "I think this is an opportunity for us to pass a good law."
Petty said he proposed the new section of city code after being approached by the Northwest Arkansas Center for Equality, an LGBT advocacy group with offices in Fayetteville. The proposal uses model language provided by the Human Rights Campaign.
It includes safeguards for some of the same classes of people who are protected from discrimination under state and federal law.
Businesses and landlords across the country are prohibited from refusing to serve or rent to people because of their age, gender, national origin, race, religion or disability, for example.
Federal laws don't reference sexual orientation or gender identity. Arkansas is among more than 25 states where an employer can legally fire someone because he's gay or where a landlord can evict a transgender tenant for no other reason.
The Fayetteville proposal would offer local protection to tenants, homebuyers, employees at workplaces with five or more individuals and places of public accommodation, defined as "establishments within the city which offer goods, services, accommodations and entertainment to the public."
The proposal also bans discrimination on the basis of ethnicity, gender expression, familial status, marital status, socioeconomic background and veteran status.
Employers couldn't fire, refuse to hire, unfairly compensate, fail to promote, deny benefits to or otherwise segregate workers because they belong to any of the classes identified.
Landlords, real estate agents and people selling their homes would be prohibited from offering different lease terms or sale prices to different types of people. A seller couldn't tell a lesbian couple his house has sold and then turn around and sell it to a straight couple, for instance.
Groups such as the Fayetteville Housing Authority could continue to favor disabled tenants, low-income residents or people older than 55.
Places of public accommodation would be required to serve all customers, regardless of race, religion, gender or sexual orientation.
Employers would be required to display excerpts of the ordinance in their workplaces. And the ordinance's provisions would apply to all city offices as well as to contractors doing business with the city.
A municipal civil rights administrator position would be created to receive, investigate and try to mediate complaints of discrimination.
Violations would be referred to the city prosecutor's office, and, if found guilty, a landlord or business could be fined up to $500.
It's unclear who would fill the civil rights administrator position. Mayor Lioneld Jordan told aldermen last week he likely wouldn't name an administrator until after an ordinance is approved. He said the position could be filled initially without adding to the city's head count.
For And Against
Perhaps the most common argument against the ordinance at the City Council's Aug. 5 meeting was no one offered a specific example of discrimination based on sexual orientation or gender identity.
"This appears to be a solution in search of a problem," said Peter Tonnessen, a northeast Fayetteville resident.
Aldermen Mark Kinion, in a post on his Facebook page following the meeting, turned Tonnessen's argument on its head.
"If indeed, as some stated, 'There is no discrimination in Fayetteville,' then why would we be afraid to state publicly in an ordinance that Fayetteville does not discriminate," Kinion said.
Several opponents, including Valerie Biendara, called the ordinance an attack on Christian beliefs, even after the council offered an amendment stating, "Nothing contained in this chapter shall be deemed to require any religious or denominational institution or association to open its sanctuary or chapel to any individual or group for any ceremony, including, but not limited to weddings, funerals, confirmations or baptisms."
The amendment would prohibit business owners from denying service to someone based on his or her religious beliefs. A baker or florist could be fined, for example, for refusing to make a wedding cake or flower arrangement for a same-sex ceremony.
And then there's the bathroom talk.
The Rev. Jeremy Flanagan, pastor at Pathway Baptist Church on Mount Comfort Road, said male pedophiles or sexual predators could use the guise of gender identity to enter women's restrooms or changing areas.
"It's not about homosexuality; it's about public safety," he said in an email following the Aug. 5 meeting. "It isn't the person who genuinely has a gender identity decision to make that worries me. That person is not a threat to my wife or someone's daughter."
Blake Pennington, assistant city attorney, in an Aug. 5 memo to the mayor and City Council called arguments such as Flanagan's "nothing more than fear-mongering."
"Using the bathroom is a basic human function, and denying that to a person is inhumane," Pennington said. "The acts perpetrated by the criminals in those stories will continue to be criminal acts."
Other, more logistical concerns focused on how much the ordinance might cost city taxpayers.
Ward 1 resident Debbie Beckerdite said the city shouldn't spend money on a civil rights administrator. And, she said, the ordinance could lead to a rash of legal challenges, costing the city attorney's office time and money.
Rick Cochran, District 7 justice of the peace on the Washington County Quorum Court, urged aldermen to "end the discussion on this and tear it up and throw it away."
"We need to get on with the business of Fayetteville," Cochran said.
Several other cities that have enacted similar antidiscrimination ordinances haven't been inundated with lawsuits or flooded with complaints.
In Iowa City, Iowa, a town of 72,000 and home to the University of Iowa, a human rights coordinator is a full-time city staff member, just like in all Iowa municipalities with 29,000 or more residents.
Iowa City enacted a policy prohibiting discrimination based on sexual orientation in 1977. Gender identity discrimination has been barred since 1995.
Stefanie Bowers, the city's human rights coordinator, said there are generally 40 to 60 complaints filed per year. That includes allegations of discrimination against all protected classes, including racial minorities and women. Bowers said there may be just one case each year that gets referred to the city prosecutor's office. More often than not, both parties agree to mediation.
"Sometimes it just results in a simple apology," Bowers said. "It may involve the respondent requiring training on diversity."
Bowers said there haven't been any legal challenges to the city's nondiscrimination policies since she began working there in 2006.
The same is true in Columbia, Mo., where discrimination based on sexual orientation has been prohibited since 1992. Gender identity was added in 2011.
Adam Kruse, assistant city counselor in the Columbia Law Department, reported even fewer complaints of discrimination than Iowa City. He said there were five complaints among all protected classes last year and just one related to gender identity in the past three years.
Those numbers don't include general inquiries to the city's law department, Kruse said. Aggrieved parties might also bypass the city and file complaints with the statewide Missouri Commission on Human Rights, where there's an opportunity for direct financial restitution, rather than a city-imposed fine.
Unlike Iowa City, mediation in Columbia is done pro bono by University of Missouri law students. Iowa City and Columbia both have volunteer human rights commissions as sounding boards for complaints. Kruse is staff liaison to the Columbia Human Rights Commission, but it's not his full-time job.
"It's not an administrative burden on the city of Columbia," he said.
Kruse added the low number of formal complaints in Columbia isn't an indication the policies aren't having an impact.
"It's been so helpful for these residents," he said. "These people feel lost, and they don't feel like there's a solution."
At the very least, Kruse said, people who believe they've been victims of discrimination have a better understanding of their legal rights and have a sense that someone in city government is looking out for them.
"Even if we don't change landlords' behavior," Bowers, in Iowa City, said, "at least they know that somebody's watching."
It's not just cities that have adopted antidiscrimination policies protecting gay and transgender people either.
The University of Arkansas earlier this week released an updated nondiscrimination policy for students, faculty and staff that includes gender identity and sexual orientation.
According to research by the Williams Institute at the UCLA School of Law, 49 of the top 50 Fortune 500 companies prohibited discrimination based on sexual orientation as of June 2014. Forty-two of the companies had policies against gender identity discrimination, too.
"This is one area where the private sector has overtaken the public sphere," William Cash Jr., director of the U.S. Equal Employment Opportunity Commission's Little Rock area office, said Thursday.
Cash runs the federal agency's office in Arkansas, where residents can file complaints of discrimination in employment practices. Housing complaints go to the Arkansas Fair Housing Commission.
Arkansas is one of only two states -- with Mississippi -- that doesn't have its own fair employment practices agency.
Cash said the Equal Employment Opportunity Commission receives about 1,600 complaints per year in Arkansas. He couldn't say how many of those complaints are related to sexual orientation or gender identity, because most of those complaints aren't covered by federal law.
Cash said there has been a shift in case law recently, though, affording some protection to the LGBT community under Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on ace, color, religion, national origin, or sex.
In the same way a woman may have grounds to sue her employer if she's fired because she's told she needs a makeover or is too "pushy," a gay job candidate who's told he's not manly enough for the position, or a lesbian worker who is fired because she married to another woman, could make a charge claiming "gender stereotyping," Cash explained.
There are no protections, however, for an employee who's told frankly, "We just don't want a gay man working here," he added.
Cash said he's confident there will one day be a federal prohibition on discrimination based on sexual orientation and gender identity.
"But how soon we get to that point," he added, "it's hard to say."
Power To The People
An up or down vote by the City Council on Tuesday won't necessarily be the end of the issue in Fayetteville.
As with a controversial "human dignity resolution" more than 15 years ago, the matter could be referred to a vote of the people.
The City Council in April 1998 voted, 6-2, in favor of the human dignity proposal, which would have added "familial status" and "sexual orientation" to Fayetteville's nondiscrimination policy for city employees. The next week Mayor Fred Hanna vetoed the resolution, saying it was divisive and "contrary to the public interest of the citizens of Fayetteville."
Three-quarters of the council overturned Hanna's veto. A petition drive by a group called Citizens Aware placed the measure on the ballot, where it was struck down for good in a November referendum. More than 57 percent of the 13,558 residents who cast ballots voted against the resolution.
Residents can challenge any ordinance aldermen approve or initiate any ordinance they would like to see enacted, said City Clerk Sondra Smith. Both actions would require signatures from at least 15 percent of the 27,296 residents who voted in the 2012 mayoral election.
City Attorney Kit Williams said the City Council could also enact the ordinance Tuesday with an amendment making it contingent upon its passage in a special or general election.
Petty, the proposal's sponsor, said public attitudes and beliefs on LGBT issues have evolved since 1998.
"I believe we have a majority support of the public, and we've had that for some time," he said.
Asked if he would be in favor of referring the issue to a public vote, Petty said, "I'm supportive of the democratic process we already have in place."
He added, "I think if we referred it to a vote without weighing in on it ourselves, we'd be abdicating (the City Council's) responsibilities."
Justin Tennant, Ward 3 alderman, has expressed concerns about how the ordinance would be administered. He said last week he expects to hear a flood of residents' opinions at Tuesday's meeting.
Tennant said he has received "hundreds" of calls and email from people living throughout the state.
When discussing the proposal at last week's City Council meeting, Tennant was interrupted when his cellphone rang.
"Hey, there's another citizen calling me about it," he quipped before warning other aldermen a vote from Tuesday's meeting could come "after breakfast" Wednesday morning.
NW News on 08/17/2014