Cities all across America have passed anti-LGBTQ discrimination ordinances to protect their residents from hate. But these ordinances often face stiff opposition and even lawsuits from right-wing advocacy groups like Liberty Counsel. Find out what happened when one court in Florida struck down a local law, and how a recent U.S. Supreme Court case is coming to the Queer community’s aid.
In 2017, after five years of public debate, the Jacksonville City Council passed the city’s Human Rights Ordinance (HRO). This ordinance, like other state and local Human Rights laws in New York and across the country, prohibited discrimination in the workplace and in residential housing based on sexual orientation and gender identity. However, the ordinance also included exemptions for religious organizations including hospitals and emergency shelters that did not apply to other forms of discrimination banned by the law.
But five years of debate wasn’t enough to guarantee even these limited protections to Jacksonville’s LGBTQ residents. After the ordinance became law, the right-wing group Liberty Counsel took the matter to court. They represented John Parsons, a Jacksonville resident, who said the new HRO injured his “personal bodily privacy, modesty and dignity,” along with Liberty Ambulance Service and Diamond D. Ranch. These businesses claimed that the HRO conflicted with their religious beliefs.
Liberty Counsel’s complaint was dismissed in late 2017. Senior Circuit Judge Michael Weatherby called their injuries “speculative” and insufficient to justify the action. However, the case pressed on through an appeal to the 1st District Court of Appeals in Florida.
Then, in May 2020, Liberty Counsel got what it wanted, if not for the reasons it had told the press. The appeals court struck down the LGBTQ discrimination ordinance, saying the way that it was passed violated state and local laws. The appellate decision didn’t address Liberty Counsel’s claims that the HRO was unconstitutional religious discrimination. Instead it focused on the practical problems with the bill’s formatting.
Because of a clerical error, the section of the bill that outlines which statutes and ordinances would be amended was missing. Without that language the 2017 HRO was just a promise to change the Jacksonville non-discrimination ordinance -- not an actual amendment to the law. Because of this, the court of appeals struck the ordinance down, essentially telling the City Council to try again.
The up-side to the court of appeal’s use of a technicality to strike down the HRO is that it was easy to fix. About a month after the court issued its decision, the Jacksonville City Council quietly reinstated the anti-LGBTQ discrimination ordinance. Unlike the 2012 version, or even the 2017 law that passed, this one happened without public controversy or uproar.
Because of COVID-19, the City Council met virtually, via video conference. There were no public speakers, and no discussion among the councilmembers over reinstating the bill. The new human rights ordinance passed with a veto-proof majority of 15 to 4, and was signed into law, again.
It may seem like reinstating the ordinance will just give Liberty Counsel a chance to file a new lawsuit -- maybe with stronger plaintiffs this time. However, since the initial complaint was filed in 2017, a much bigger decision has made any new lawsuit much harder to win.
In June 2020, the U.S. Supreme Court issued its opinion in Bostock v Clayton County, which consolidated three different workplace discrimination cases involving gay and Trans* employees. The opinion, written by Justice Neal Gorush, established a nationwide law that sexual orientation discrimination and gender identity discrimination are necessarily forms of sex discrimination under Title VII -- the federal anti-discrimination law. While LGBTQ advocates may have preferred a more sweeping decision than they received from the conservative justice, they will undoubtedly use the language in Bostock to defend against attacks on state laws and local ordinances designed to protect LGBTQ residents in the future.
At Eisenberg & Baum, we understand the damaging affects of sexual orientation and gender identity discrimination. We know how to use federal and state laws as well as local ordinances to stop the harassment and diffuse toxic working environments. From our office in New York City, our employment discrimination attorneys travel nationwide, helping LGBTQ workers negotiate with employers who simply do not understand the recent changes to the law. We are committed to making our office a safe space for you and your loved ones. If you feel like your employer is using your sexual orientation, gender identity or expression against you, contact us. We'll meet with you and help create a strategy that protects you against genderqueer discrimination.