LITTLE ROCK, Ark. (AP) — Arkansas Supreme Court justices questioned Thursday whether a city’s ordinance banning discrimination based on sexual orientation or gender identity flies in the face of a 2015 state law that was intended to prevent local LGBT protections.
An attorney for the state asked the court during oral arguments to strike down the anti-discrimination ordinance Fayetteville voters approved, saying it clearly violates the law from a few months earlier that intended to ban such ordinances. Fayetteville is among a handful of cities that approved varying protections for lesbian, gay, bisexual and transgender people in response to the state law.
The 2015 law prevents cities and counties from approving anti-discrimination ordinances on a basis not contained in state law. Arkansas’ civil rights law does not include sexual orientation or gender identity, but a judge who upheld Fayetteville’s measure noted they’re mentioned in other parts of state law.
“The city’s interpretation of the act, however, would neuter it, leaving the act unable to require statewide uniformity and unable to prevent the patchwork of varying discrimination laws in the 500-plus localities in Arkansas,” State Solicitor General Lee Rudofsky told justices.
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Arkansas is one of three states to have such bans on local LGBT protections, and it’s unclear whether justices will rule on the state law’s constitutionality. The state is asking the high court to find the law constitutional, but Fayetteville argued it shouldn’t weigh in on the issue since it wasn’t addressed in the ruling upholding the ordinance.
“We did not attempt to give gay and lesbian and transgender people any more rights than anyone else in the state of Arkansas. Of course, we could only apply that in Fayetteville,” City Attorney Kit Williams said. “This is a very moderate ordinance.”
Justice Shawn Womack, a former Republican state legislator who was elected to the high court last year, repeatedly questioned Williams over the city’s argument that its ordinance was legal since LGBT rights are protected elsewhere in state law. Womack noted that property owners are also given rights in other parts of state law.
“Aren’t you asking us to abandon the traditional idea of what a protected class is and adopt a new theory that anyone afforded any type of protection in state law can now become a protected class?” Womack asked.
Williams said the LGBT protections in other parts of state law are different since they expressly prohibit discrimination against a group of people in certain circumstances.
Justice Rhonda Wood also expressed skepticism about the city’s argument, noting that the 2015 law said its purpose was to prevent varying anti-discrimination protections across the state.
“This isn’t one where we have to guess what their intent was,” Wood said.
Justices did not indicate when they would rule on the case. Tennessee has a similar ban, and the prohibition is also part of North Carolina’s controversial law restricting which bathrooms transgender people can use.
A state appeals court dismissed a lawsuit against Tennessee’s ban in 2014. North Carolina’s law, which prompted widespread boycotts of the state, is being challenged in federal court.
In the months following the Legislature enacting the ban, Fayetteville and Eureka Springs approved broad anti-discrimination protections for LGBT people. More limited measures covering only government agencies and contractors were enacted in capital-city Little Rock, Pulaski County and in Hot Springs.
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