The Fayetteville City Council voted 6-2 to pass a controversial anti-discrimination city ordinance near the end of a 10 hour-long council meeting that ended early Wednesday morning.
After public comment ended, 73 Fayetteville residents had spoken about the ordinance. Forty-nine people were in favor of the proposal and wore red, and 24 were against it and wore purple. Of the 14 non-Fayetteville residents who spoke, only one was in favor of the ordinance.
The ordinance won’t go into effect until after 31 days. Once it does, the ordinance will extend the protected rights guaranteed to citizens in the Arkansas 1964 Civil Rights Act to include the categories of gender identification and gender preference — namely those who identify as lesbian, gay, bisexual or transgender — and social economic background. It also will extend employment protections for citizens from businesses with 15 or more employees to those with five, said Kit Williams, Fayetteville city attorney.
Before this ordinance, a person who identifies as LGBT could be fired by an employer and no legal recourse would be available for the person discriminated against solely for their gender preference, said Ward 2 Alderman Matthew Petty.
The ordinance also creates the position of civil rights administrator. The position’s role is to act as a resource for community members to go to talk about the potential discrimination, and will see whether or not there is any reason that the administrator should contact the employer or business. Basically, they’re there to try to resolve things, and if that’s impossible, then the complainant has the right to go to the city prosecutor, Williams said.
The ultimate authority on whether or not an instance of discrimination has occurred will be determined by the city prosecutor, and if taken to court and a judge finds the defendant guilty of discrimination, they would be subject to a $500 criminal fine, but it would be considered a violation, lower than a misdemeanor, Williams said.
During the 31 days, Mayor Lioneld Jordan said he will work with Dan Marr, his Chief of Staff, and city staff to determine which city staff member will be chosen as the civil rights administrator.
“We’ll sit down and figure out how to handle this,” Jordan said. “I’ve got a great staff, and I’ve got all the confidence in the world we’ll figure out what we need to do. Whatever help I need I’ll get from this council, and we’ll make it happen.”
Those who opposed the bill, including Ward 3 Alderman Justin Tennant, stated that this ordinance is an overreach of government in its current form, and a civil rights commission would be a better means of a resource for those who feel they were discriminated to use.
“I don’t want this law. It’s such an overreach,” Tennant said before taking the ordinance to a vote. “We would have one of the broadest ordinances in the country. We need staff, we need money for our staff, and we think this is a good idea to burden an existing employee — which I think is huge. I don’t think anyone in this city is capable of this undertaking.”
Tennant said he was against discrimination, even saying it “pisses him off” whenever he hears his gay friends are told they’re going to hell for loving another man.
If at least 4,092 signatures are collected in a petition against the ordinance, the city clerk will have to go through all of the petitions and match the signatures with the registered voters, as with any petition. If the petition is done correctly, the City Council will be required to schedule a special election within 60 to 120 days, or two and four months.
“That’s an arduous task, and time consuming task,” Williams said. “The last time we did it, she spent a lot of hours going through the signatures to try to verify them.”
The special election would only be able to vote down the enacted law, and the election would cost anywhere between $25,000 and $30,000 to operate.
1. Completely Exempting Tax-Exempt Properties, passed 8-0
Proposed by Alderman Matthew Petty, this amendment extended the exemption of this ordinance to include all tax-exempt properties, which are often churches and places of worship. With this amendment, religious staff would not be required to provide services to groups they wish to not associate with or do not agree with.
Those who stood against this amendment argued that this amendment didn’t cover enough, and that it would impede on their first amendment rights. Some stated that they felt they wouldn’t have the right to express their beliefs outside the walls of their church.
In response, Williams said the ordinance couldn’t infringe on your freedom of speech or religion, and if a person wanted to preach their beliefs in the streets, they are protected by law to do so.
2. Clarifying the Bathroom Issue, passed 8-0
Also proposed by Ward 2 Alderman Petty, all this amendment did was specifically clarify and state that “Nothing in this chapter shall be construed as allowing any person to enter any gender-segregated space for any un-lawful purpose.”
Jeremy Flanagan, pastor of Pathway Baptist church, said he interpreted this amendment was only stating that it was “illegal to use this ordinance with the intent to do something illegal.” He raised concerns that a male pedophile or child molester could claim they are a woman and gain access to public restrooms.
“The person who truly is struggling with a gender identity issue, they’re still questioning or they’ve made their decision I’m not concerned about them. They’re doing what they feel is right in their heart,” he said. “But there are people who will use any loophole in any law to do what is not right.”
Flanagan went on to ask questions if the ordinance would protect people who feigned transgender identity. In response to the bathroom space concerns, Williams had a response.
“The first thing you need to know is that state law will trump and control city ordinance,” he said. “There are two state laws that might have application on someone who is being inappropriate, indecent exposure and disorderly conduct. The police chief had no doubt that if someone of the incorrect gender entered the wrong bathroom and it was intentional, they would in fact be arrested. This ordinance will not be a shield against state law.”
3. Motion to move the ordinance to the general election on Nov. 4, denied 2-6
This amendment, proposed by Alderman Tennant, was a suggestion to let the divisive issue be put to a public vote to give what the people want. Those for the amendment agreed that it would be most democratic option for this.
However, Laurent Sacharoff, associate UA law professor, said at the meeting that history has shown that the majority cannot be trusted to decide what’s best for the minority in a democracy, quoting James Madison.
Some council members, including Alderman Mark Kinion, said they agreed with Sacharoff, and would vote this amendment down because putting this to a vote would be the easy way out, and stated they will do what they were elected to do.
“What I know from my own experience, fear will win out truth,” Kinion said. “Public safety for all is not optional, and having the majority decide for the minority is not always fair. I think that’s true. I’m not going to take the easy path, I’m taking the right path.”
While many of the statements were passionate, the public comments were very civil and only minor instances occurred where Mayor Jordan needed to either cut people on time or silence the crowd.
There were 18 people who made comments throughout the night about their own experiences of discrimination in Fayetteville, and many said they “lived in fear.”
“When I moved here I had a real fear of not finding a home. We were concerned if a owner found out we were gay we wouldn’t find a home,” Jay Parker said. “If you’ve never been afraid of finding a new home because you’re gay, you don’t know what it’s like. Sometimes democracy isn’t cheap, but it’s the best way.”
James Rector, director of NWA Center for Equality, was there to speak as well. He argued that passing this ordinance would make Fayetteville more desirable of a city, and instill pride in its residents.
“A lot of people have to closet their lives in their workplaces because of the fact that we do not have any city or state laws. When we really come down to saying everyone having equal rights, that’s not a true statement. Passing this ordinance will give a lot of hope for people who live here.”
As a counter-point, several who opposed expressed concerns that this ordinance would create a “chilling effect” on the local economy, and some even commented stating that they would leave Fayetteville if this ordinance were to pass.