Civil Rights

LGBT protections in city ordinance struck down by Arkansas Supreme Court

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Arkansas Supreme Court

The Arkansas Supreme Court has struck down a city ordinance banning discrimination based on sexual orientation or gender identity, the Associated Press reports, but it did not weigh in on whether the state law that prohibited the protections is constitutional.

The 2015 ordinance enacted by Fayetteville, a liberal enclave in a conservative state, had been enacted in response to legislation that year by the state General Assembly prohibiting local governments from adopting any discrimination law that “creates a protected classification or prohibits discrimination on a basis not contained in state law.”

Arkansas’ Act 137 (PDF), titled the Intrastate Commerce Improvement Act, states that its purpose is “ensuring that businesses, organization, and employers doing business in the state are subject to uniform nondiscrimination laws and obligations.” Though it does not mention gays, lesbians or sexual orientation and does not address anything other nondiscrimination laws.

In turn, the Fayetteville law took up the state legislation’s title in its own: “An Ordinance To Ensure Uniform Nondiscrimination Protections Within The City of Fayetteville For Groups Already Protected to Varying Degrees Throughout State Law.”

Thus the state argues that there are no specific LGBT protections in the state law, while Fayetteville argues that they are included in three other statutes: an anti-bullying statute that protects students or public school employees from bullying that “may address an attribute of the other,” and defines attribute as including “an actual or perceived personal characteristic including, among other things, gender, gender identity or sexual orientation;” the Arkansas Domestic Peace Act, which asks domestic-abuse shelters to develop their own nondiscrimination policies; and the Vital Statistics Act, which permits the amendment of birth certificates after sex-change surgery and a name change.

The state Supreme Court ruled (PDF) those laws are “unrelated to nondiscrimination laws and obligations and do not create protected classifications or prohibit discrimination on some basis.”

The city’s ordinance “violates the plain wording of Act 137 by extending discrimination laws in the city of Fayetteville to include two classifications not previously included under state law,” the unanimous court ruled. “This necessarily creates a nonuniform nondiscrimination law and obligation in the city of Fayetteville that does not exist under state law.”

The state also argued that Act 137 is constitutional, but the Supreme Court said it did not have to consider that question because the issue was not addressed in the lower court.

Fayetteville City Attorney Kit Williams said he will work on challenging the law’s constitutionality in the lower court. “They can’t, by not using express terms, accomplish the same result which is truly what their intent was, which was to prevent the city from enacting protections for its gay and lesbian residents.”

Other local ordinances targeting the 2015 state law were not addressed in the case. Eureka Springs, a gay-friendly resort town, enacted broad anti-discrimination protections for the LGBT community, and Little Rock, the surrounding county and Hot Springs adopted limited measures concerning government agencies and contractors.

Besides Arkansas, Tennessee and North Carolina enacted similar bans on local anti-discrimination laws. A lawsuit against the Tennessee statute was dismissed by a state appeals court in 2014, and North Carolina’s law is under challenge in federal court.

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