The Topsy-Turvy Fight For Fayetteville Ordinance 119

In the early morning hours of Aug. 20, after 10 grueling hours of public comment, the Fayetteville City Council approved, 6-2, an ordinance protecting the civil rights of all persons to be free from unfair discrimination. Since then, a backlash of opposition — aimed principally at the lesbian, gay, bisexual, and transgender (LGBT) community — has resulted in a petition drive calling a special election for Dec. 9.

Enter the culture wars. Actually, re-enter them. In 1998 the then-Council passed the Human Dignity ordinance, which would have prohibited the city from discriminating against its gay employees. Then-Mayor Fred Hanna vetoed the measure. The Council overturned the veto, the ordinance was put to a public vote, and it failed by a margin of 58 percent to 42 percent.

Times have changed. Sixteen years down the road, it’s time to try again.

Judge Richard Posner, a Reagan appointee and one of the nation’s most respected legal thinkers on the right, says that gay people have been targeted, traditionally, by “hate and savage discrimination.” Now we’re getting a taste of it right here at home. Some opponents to the civil rights ordinance mistakenly claim that it would infringe on freedom of speech and religion, it would confer special rights on LGBT people, and, most egregiously, it would allow predatory behavior in women’s restrooms.

These claims fail to grasp that the ordinance is consistent with free speech and religious exercise as guaranteed by the United States Constitution. The rights the ordinance conveys are no more special than those rights enjoyed by any other straight white person. The measure is designed simply to correct the wrong in which minorities — not just LGBT people but, also, those others the ordinance now protects, including veterans, and racial, religious, ethnic, and other minorities — can be denied the privileges of the political process that the majority may take for granted.

The last claim about bathrooms is especially misinformed. Transgender people are the picked-on, not the predators. In 2011, the National Transgender Discrimination Survey found that nearly half of transgender people reported having been harassed. In any case, significant harassment done by anybody has been, and it remains, a prosecute-able offense.

The facts are that LGBT people are the ones who suffer from hatred and stigmatization. As of now in this town, most regrettably, it remains legal to fire people, or to deny them housing or public accommodation, simply because they are gender-nonconforming. Worse, such minorities are vulnerable to extreme excesses of prejudice and unfounded fear. They can become scapegoats. They can become targets.

Now is the opportunity to speak up and change that. At the Aug. 20 City Council meeting, Mayor Lioneld Jordan said, “I see a day when everyone is judged by their character and not by a label or a tag. It’s time for all those who have been excluded from the table of equality to have a place at that table, no matter where they come from, what they believe, or whom they love.”

Change is rarely easy. It’s frequently uncomfortable, destabilizing, and it can result in turmoil and fear. But as Jordan also said, “If you never depart, you never arrive. We’ve got to move from where we are to where we’ve never been, or we’ll always be stuck right where we are.”

It’s not as if this push were new or radical. Twenty-one states, the District of Columbia, at least 262 local communities, most Fortune 500 companies, Walmart, the University of Arkansas, and 67 of the nation’s largest 100 law firms have already enacted antidiscrimination laws, policies, and ordinances much like Fayetteville’s.

So now Fayetteville residents are asked to vote on civil rights once again. This is a worrisome development. It risks that the superior numbers of the majority will swamp the minority, who may not be able to muster big-enough numbers to protect their rights. Moreover, there is always the potential, in such emotional matters, for “ruling by passion” and the “violence of faction,” in the words of founding-father James Madison.

Further still, discrimination has a long and ugly history in this country. The “one-person-one-vote” franchise – which ought to be sacrosanct – has been subjected to numerous suspect stratagems and manipulations. Voter ID measures are just the most recent example. We can be grateful that the Arkansas Supreme Court has just struck them down.

So here, then, is the answer to another objection the opposition raises: That government over-reaches, when it acts to protect the rights of minorities. Minorities need that protection. The vote is no guarantee.

And this time, in addition to all the other risks this election poses, it is further vexed by one more unfortunate wrinkle. Thanks to the opposition’s having written the ballot language, you must vote “against repeal” if you are “for” the ordinance. Don’t let this topsy-turvy double-negative confuse you. Vote “against” undoing what the City Council has so courageously done and re-done. Vote “against” diminishing the civil rights of all.

Residents of Fayetteville, your vote is crucial. Vote “against” on Dec. 9.