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Voters in Fayetteville, Ark., reversed course from last December, approving a civil rights ordinance that includes protections for sexual orientation and gender identity in a special election held Tuesday. Last year, a broader version of the ordinance was approved by the Council, but repealed by voters.
According to the Arkansas Times, the ordinance was revised from last year to include more religious exemptions and a mediation process for complaints. The penalties for violating the ordinance were also reduced, with a small fine being the harshest possible outcome.
As written, the ordinance prohibits discrimination based on sexual orientation and gender identity in employment, housing and public accommodations. It sets up a Civil Rights Commission, whose members must be approved by the Fayetteville City Council, to review complaints of discrimination. Those who violate the law can be fined up to $100 on the first offense. The ordinance is tentatively scheduled to take effect on Nov. 7.
“I think this says that Fayetteville voters really are fair and inclusive folks,’ said Kyle Smith, president of For Fayetteville, the group supporting the ordinance. “I think we proved tonight that this is the Fayetteville we all know and love.”
However, the final fate of the ordinance remains unknown. The Northwest Arkansas Democrat-Gazette reports that Protect Fayetteville, the group who opposed the original ordinance, has challenged its legality. Opponents claim the ordinance was improperly referred to voters at a City Council meeting, and that the ordinance is illegal under Act 137, a General Assembly-approved piece of legislation that prohibits individual counties or cities from enacting or enforcing legislation that “creates a protected classification or prohibits discrimination on a basis not contained in state law.”
A court date has not yet been set to hear arguments as to why the ordinance should be voided. If the ordinance were to be found to violate Act 137, the only way the protections included in it could be reintroduced would be if the General Assembly were to approve a statewide LGBT nondiscrimination law, which would then have to be signed by the governor.
According to the Democrat-Gazette, Fayetteville City Attorney Kit Williams has argued that sexual orientation and gender identity are referenced in a section of state law dealing with bullying in public schools, meaning the General Assembly has previously recognized the existence of those classes of people, even if they are not explicitly mentioned in Arkansas’ statewide nondiscrimination law.
“The protected classifications are certainly there in state law, and, therefore, this is not a new protected classification,” Williams told reporters. He also questioned whether Act 137 was constitutional, arguing that it may violate the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution.
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