Legalizing Discrimination: A Look at How the Southeast is a Region without LGBT anti-discrimination Protections By: Akiesha Anderson

Legalizing Discrimination: A Look at How the Southeast is a Region without LGBT anti-discrimination Protections

By: Akiesha Anderson

Introduction

The LGBT population traditionally has not been protected by and afforded certain rights under the law in large part because they have not been recognized by the law. Unlike minorities, women, children, and other groups of people whom the law has often explicitly recognized and classified, until recent years the law has treated LGBT persons much like society has treated them—as marginalized, discounted, and not quite worthy of special protections under the law. However, within the last twenty years many notable steps have been taken to ensure and establish often denied rights and protections to LGBT persons. [1]

At the end of last year’s legislative sessions, nearly two-thirds of states in the nation provided some sort of protections against employment discrimination based on sexual orientation. Additionally, over forty percent of states provided protections prohibiting housing discrimination based on sexual orientation. The same percentage of states had public accommodation laws prohibiting discrimination based on sexual orientation. Although these numbers show a positive outlook and great progress being made in the fight for LGBT rights, it is troubling to note however, that such progressive state laws had not been enacted anywhere in the southeast. [2]

The southeastern LGBT community still faces numerous hurdles including legislative actions which affect their everyday life and freedom. Sadly, southeastern legislatures are not above proposing and enacting laws specifically designed to legalize and codify discrimination. In the year immediately following the Supreme Court’s same-sex marriage decision in Obergefell, and as many states begin their legislative sessions, LGBT-rights advocates should recognize the importance of watching state legislatures and any proposed bills which may impact the lives of LGBT-citizens. Especially in the south, and the ‘Bible-Belt’ region of the nation, where many citizens and elected officials alike are still actively resisting the Supreme Court’s decision, it is likely that state legislatures will be used as a forum to codify pro- or anti-LGBT sentiments in the coming years.

Southeastern 2015 LGBT anti-discrimination Legislative Trends

Although, last year, Alabama,[3] Florida,[4] and Georgia[5] each proposed legislation aimed at providing the LGBT community with protections against discrimination, none of these bill were passed. On the opposite end of the spectrum, Arkansas proposed and enacted a law last year to ban municipalities from providing the LGBT community protections against discrimination.[6] Arkansas’ bill is scary not only because it codifies rights to discriminate, but also because it gives other states a blueprint and example of what they too can do to push back against and show resistance towards the LGBT-rights movement. Thus Arkansas’ bill may very likely only be the first in a wave of similar bills to be introduced by various state legislatures both this year and upcoming years.[7]

Arkansas’ bill entitled “The Intrastate Commerce Improvement Act” prohibited all municipalities within the state from adopting and enforcing policies prohibiting discrimination against any additional classes of persons not already protected by state law.[8] In 1996, a state law which had the same effect was ruled unconstitutional by the Supreme Court in Romer v. Evans.[9] In this case the Supreme Court held that a law enacted by Colorado in 1992, preventing local municipalities from enacting or enforcing LGBT anti-discrimination protections was unconstitutional under the Equal Protection Clause.[10] This Colorado law had one major characteristic which distinguishes it from the law just passed in Arkansas: the latter’s effect on LGBT protections is implicit whereas Colorado explicitly singled out LGBT persons as a class to be denied protections.

Although Arkansas’ law is arguably facially neutral,[11] in effect, it invalidates and prevents local ordinances designed to protect LGBT persons from discrimination.[12] The passage of this bill makes Arkansas the second state since Romer to ever pass such a bill. In 2011, Tennessee became the first.[13] Tennessee’s bill offers some level of insight into what an unsuccessful challenge to Arkansas’ or similar bills in the future may look like.

In 2014, Tennessee’s bill entitled the “Equal Access to Intrastate Business Act” survived a lawsuit challenging its constitutionality.[14] The State of Tennessee was the victor in this lawsuit mainly because it was able to get the court to rule on the procedural intricacies of the case thus preventing an evaluation of its merits.[15] Nevertheless, this success story increases the likelihood of more states besides just Arkansas following in its footsteps by enacting copycat laws.

Conclusion

It is important for LGBT-rights advocates to be aware of bills designed to strip or enact LGBT discrimination protections as in the upcoming legislative session such bills are likely to been seen and duplicated. Additionally, LGBT-rights advocates must develop strategies support the enactment of desirable bills whilst challenge and try to prevent the enactment of discriminatory bills. Because Tennessee’s legal challenge was not decided on its merits, the likelihood of success for a legal challenge to Arkansas’ or similar bills which may be enacted in the future remains to be seen. Although additional research will need to be done should LGBT-rights legal advocates decide to participate in lawsuits challenging the law enacted in Arkansas or similar laws proposed in other states, initial ideas and thoughts concerning how to approach such a legal challenge include the following:  the law presently is not on the side of LGBT-rights advocates unless there is clear indication in legislative history that displays amicus; and then it is only on their side in brief strokes. (2) State preemption and “home-rule” laws will need to be taken into consideration when attempting a legal challenge to these kinds of state laws as different states have different rules regarding such.

 

 

[1] See, e.g. Obergefell v. Hodges, 576 U.S. __ (2015); see also, Exec. Order No. 13,087, 63 Fed. Reg. 30,097.

[2] Throughout this blog, ‘southeast’ refers only to the states of Alabama, Arkansas, Florida, Georgia, Louisiana, Mississippi, and Tennessee.

[3] See Civil Rights…Free From Discrimination…Act, Ala. H.B. 615, Reg. Sess. (2015) available at http://alisondb.legislature.state.al.us/ALISON/SearchableInstruments/2015RS/PrintFiles/HB615-int.pdf (an ant-discrimination bill designed to ban discrimination based on sexual orientation and gender identity. This bill would have provided protections in the areas of employment, housing, voting, financial transactions, and other accommodations).

[4] See e.g., Florida Competitive Workforce Act, Fla. S.B. 156, Reg. Sess. (2015) available at http://www.myfloridahouse.gov/Sections/Bills/billsdetail.aspx?BillId=53048 (a bill designed to add sexual orientation and other kinds of identity expression to a list of impermissible grounds for discrimination).

[5] See Fair employment Practices Act of 1978 and merit system; prohibit discrimination based on sexual orientation; change certain provisions, Ga. H.B. 323, Reg. Sess. (2015) available at https://legiscan.com/GA/text/HB323/2015 (Georgia proposed yet failed to pass a bill that would have made employment discrimination based on sexual orientation or gender identity within state agencies illegal).

[6] See Nondiscrimination Ordinances-Counties-Municipalities, Ark. Act 137 of 2015, § 14-1-41 et seq., formerly known as S.B. 202, 90th Gen. Assembly, Regular Session, (2015).

[7] See Zach Ford, Oklahoma Sets New Record for Attempts to Discriminate Against LGBT People, Think Progress, Jan. 28, 2016 available at http://thinkprogress.org/lgbt/2016/01/28/3743440/oklahoma-anti-lgbt-bills-record/ (describing S.B. 1289, a bill proposed in Oklahoma this legislative session “mirroring other ‘preemption’ bills passed previously in Arkansas…dictat[ing] that no municipality can pass a law that goes beyond what is set by state law. Because the state does not protect LGBT people from discrimination, this would effectively ban the passage and enforcement of such protections. It would invalidate the sexual orientation protections that exist in Oklahoma City and Tulsa, and the sexual orientation and gender identity protections that exist in Norman.”)

[8] See Nondiscrimination Ordinances-Counties-Municipalities, Ark. Act 137 of 2015, § 14-1-41 et seq., formerly known as S.B. 202, 90th Gen. Assembly, Regular Session, (2015).

[9] 517 U.S. 620 (1996).

[10] Id. at 635 (“We must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do. A state cannot so deem a class of persons a stranger to its laws. Amendment 2 violates the Equal Protection Clause[.]”.

[11] Supra note 6, (this law simply says that “no law shall protect a group not already protected under state law—and presents itself as being pro-business/trying to maintain consistencies for businesses throughout the state).

[12]  See, e.g. HRC Staff, Largest County in Arkansas Passes Employment Protections for County Workers, HRC Blog, May 26, 2015, http://www.hrc.org/blog/entry/in-win-for-equality-largest-county-in-arkansas-passes-employment-protection, (Hot Springs, Pulaski, Little Rock, Conway, and Eureka Springs each have ordinances forbidding discrimination based on sexual orientation, gender identity, and/or gender expression.  § 14-1-403(b) of the ordinance provides an exception for municipalities creating anti-discrimination policies for persons employed by that municipality. Eureka Springs is the only of these five cities to have comprehensive LGBT protections for all residents of the city including city workers).

[13] See Equal Access to Intrastate Commerce Act, Tenn. Code Ann. § 7-51-1801(1) & (2). (“No local government shall by ordinance, resolution, or any other means impose on or make applicable to any person an anti-discrimination practice, standard, definition, or provision that shall deviate from, modify, supplement, add to change, or vary in any manner from…state law….”).

[14] See Howe v. Haslam, 2014 Tenn. App. LEXIS 716 (Tenn. Ct. App. 2014).

[15] Id.

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2 thoughts on “Legalizing Discrimination: A Look at How the Southeast is a Region without LGBT anti-discrimination Protections By: Akiesha Anderson

  1. […] *Note: The following blog post was originally written in February 2016. This was a blog post  initially written for and published by The Alabama Civil Rights and Civil Liberties Law Review.  It’s original publication can be found here.* […]

  2. […] *Note: The following blog post was originally written for and published by The Alabama Civil Rights and Civil Liberties Law Review in February 2016.  It’s original publication can be found here.* […]

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