Arkansas Supreme Court Strikes Down City’s LGBT Policy

REUTERS/Elijah Nouvelage

Mary Lou Lang Contributor
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The Arkansas Supreme Court on Thursday ruled against the city of Fayetteville’s LGBT ordinance claiming the city violated state law when it added the two categories of sexual orientation and gender identity to its policy.

The state’s civil rights laws do not include gender identity or sexual orientation, and the state’s legislature, which passed Act 137 in 2015, prohibits local governments from adding additional categories of protected classes that are not included in the state law.

Fayetteville’s Ordinance 5871 was approved by voters in 2015 and read, “The right of an otherwise qualified person to be free from discrimination because of sexual orientation and gender identity is the same right of every citizen to be free from discrimination because of race, religion, national origin, gender and disability as recognized and protected by the Arkansas Civil Rights Act of 1993,” according to Ballotpedia.

“In essence, Ordinance 5871 is a municipal decision to expand the provisions of the Arkansas Civil Rights Act to include persons of a particular sexual orientation and gender identity. This violated the plain wording of Act 137 by extending discrimination laws in the City of Fayetteville to include two classifications not previously included under state law. This necessarily creates a nonuniform nondiscrimination law and the obligation in the City of Fayetteville that does not exist under state law,” the court ruled.

Fayetteville City Attorney Kit Williams told the Associated Press that he disagreed with the ruling and will now focus on challenging the law’s constitutionality in the lower court.

“They can’t, by not using express terms, accomplish the same result which is truly what their intent was, which was to prevent the city from enacting protections for its gay and lesbian residents,” Williams said, referring to the Legislature’s passage of the 2015 law.

Another court battle over the issue will be heard by the Virginia Supreme Court next week, which parallels Arkansas’ case, according to Liberty Counsel, a nonprofit litigation organization that advances religious freedom.

The Virginia Supreme Court will hear the case of the Fairfax County School Board, which added “sexual orientation”, “gender identity” and “gender expression” to its board policies.

Virginia, like Arkansas, requires non-discrimination categories be uniform and set at the state level.

“The Arkansas Supreme Court’s ruling is on point with the Virginia law and other states that require non-discrimination categories to be set at the state level,” said Mat Staver, founder and chairman of Liberty Counsel, in a prepared statement.

“It makes no sense to have competing and conflicting laws within a state. This is the same issue that I will argue next week before the Virginia Supreme Court,” said Staver.