Preemptions: The Lurking Threat to Local LGBTQ Nondiscrimination Protections

March 17, 2016

A Three-Pronged Attack on LGBTQ Equality

In state after state this year, opponents have used ever-evolving strategies to legislate anti-LGBTQ discrimination. The two most common strategies are religious exemption bills (so-called “religious freedom” bills) and bills focused on restroom access. The first allows businesses, organizations, and even public officials to deny LGBTQ people a wide range of goods and services.

The second denies transgender people the right to use public bathrooms and other “sex-segregated” spaces and activities. These types of bills have been introduced in states both with and without statewide nondiscrimination laws, meaning that no place is safe. Even states with longstanding employment, housing, and public accommodations protections for LGBTQ people are under attack.

Also under attack are protections at the city and county level. That’s because a third strategy is in play: municipal preemption. Though less common and less widely known, this strategy threatens to undercut hard fought gains for LGBTQ people and prevent future gains in the area of local protections.

In the 28 states that do not protect against discrimination based on sexual orientation and gender identity, municipalities have taken matters into their own hands. Through the power vested in them by their own state government, these cities and towns have been passing their own local protections for their LGBTQ residents.

Now those same state governments are attempting to strip them of that power by passing municipal preemption laws. LGBTQ people in cities as large as Philadelphia, Pennsylvania (population 1,560,297) and as small as Thurmond, West Virginia (population 5) are once again at risk of being legally discriminated against.

A Look Back at 2015

In 2015, municipal preemption bills targeting LGBTQ local nondiscrimination ordinances were introduced in states like Mississippi, Missouri, North Carolina, Texas and West Virginia. In other states, broader preemption bills like Michigan’s “death star,” which preempts a wide range of environmental, workplace and public health ordinances, eventually spared LGBT ordinances, leaving them alone.

While these preemption efforts were defeated, an LGBTQ municipal preemption bill did pass in Arkansas, without much press or outrage. The passage of this law was significant, however; prior to last year, only one other state had passed this type of legislation. That state was Tennessee, in 2011.

When the dust had finally settled on 2015 state legislative sessions, dozens of anti-LGBTQ bills had failed. We defeated all but a small handful, but that small handful included the municipal preemption bill in Arkansas.

For this reason, we sounded the alarm. Our opponents have learned that preempting municipal ordinances from passing in the first place, not to mention revoking those that were already passed, is easier and cheaper than repealing them, as we saw in the bitter fight over Houston’s ordinance last year. They scored a precious win in Arkansas and we were sure they would target additional states in 2016.

Were We Right About 2016?

So what does 2016 look like so far? Through our Legislative Action Center, we’ve been tracking municipal preemption bills in several states. Oklahoma, Virginia, and West Virginia all saw preemption bills introduced. None of them passed. But that’s not the whole story: closer examination revealed new twists to the preemption strategy:

  1. Municipal preemption bills specifically focused on bathrooms. Virginia’s bill stated that “no local ordinance prohibiting discrimination on the basis of sex shall consider the mere separation of individuals by sex to be discrimination.” This was a direct response to local school boards like Fairfax County adopting policies allowing transgender students to use bathrooms consistent with their gender identity.
  2. Municipal preemption bills incorporating “religious freedom/first amendment defense” language. South Carolina’s bill stated that “no locality, municipality, county, or other instrumentality of the State may restrict the free exercise of speech or religion.”
  3. Municipal preemption embedded in other bills. A bill in Indiana introduced as an LGBT “rights” bill, included both nondiscrimination protections and nondiscrimination exemptions in the form of carve-outs for religion and preemption. The preemption language was quite clear: “preempts local civil rights ordinances that conflict with the state civil rights law” and “repeals a provision that indicates that local entities may adopt civil rights ordinances that differ from state law.” Another bill in West Virginia, in this case, a religious exemptions bill that would’ve allowed discrimination against LGBTQ people, was amended to include anti-preemption language. Because the amended language protected local nondiscrimination ordinances, it did not pass.

That brings us to now. Missouri’s Senate Joint Resolution 39, which prohibits the state from imposing penalties on individuals and religious entities who refuse to participate in same-sex marriage ceremonies due to sincerely held religious beliefs, is still in play. It too contains preemption language and will bring the issue directly to voters at the ballot. Specifically, any local ordinance found in conflict with the law, should it pass, would be found to be in violation of it.

All eyes are also on North Carolina, where recent passage of a nondiscrimination ordinance in the city of Charlotte will likely prompt a response that may include preemption of all present and future ordinances. As we saw in Virginia, this preemption will likely have a focus on bathrooms.

What’s at Stake?

If our opponents in statehouses across the country are allowed to win, they won’t stop until they write discrimination into law in all 50 states. In the case of municipal preemption, they’ll try to ensure that the towns and cities we call home won’t even be able to fight back with their own local policies.

LGBTQ people won’t be safe from discrimination anywhere. If a transgender woman in Houston can’t use a bathroom because of her gender identity, that’s discrimination. If a gay man can’t adopt a child in Michigan because of his sexual orientation, that’s discrimination. If a lesbian couple can’t get a marriage license in the state of North Carolina, that’s discrimination.

Equality Federation is proud to support our members like Freedom Oklahoma, Fairness West Virginia, Equality North Carolina, PROMO, Equality Texas and Virginia Equality. These organizations have all fought, and continue to fight to preserve the power of towns, cities and counties in their states to do the right thing: protect all citizens from any form of discrimination.

We are also proud to work in coalition with organizations across several movements working to fight preemption on a range of issues, including paid sick leave ordinances, fracking bans, and minimum wage increases. Together we will win!

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