Nine months made a big difference for voters in Fayetteville, Arkansas. After repealing LGBT nondiscrimination protections last December by a vote of 52–48, voters changed their mind and voted 53–47 to approve them in a special election held Tuesday.
A statement from For Fayetteville, the campaign to approve the employment, housing, and public accommodation protections, praised the victory Tuesday evening. “Fayetteville has affirmed its place as one of Arkansas’ most welcoming and business friendly communities,” the statement read, applauding the local business and faith communities that joined the new consensus.
To enforce the protections, the Uniform Civil Rights Protection ordinance creates a seven-member Civil Rights Commission to review complaints. Maximum fines for the first offense are $100.
Fayetteville has been the nexus of fights over LGBT protections and may continue to be so. Last year, Michelle Duggar infamously distributed a robocall supporting the repeal of the protections because transgender people would endanger “the safety and innocence of a child.” Months later, after scandal struck her family with revelations about her son’s history of child molestation, she still defended her prejudices against transgender people as “just common sense.”
Protect Fayetteville, the conservative group that opposes the nondiscrimination ordinance, may not be done fighting it. Last week, they filed a suit challenging its legality under the Arkansas’ Intrastate Commerce Improvement Act (Act 137). This disingenuously named legislation, which Gov. Asa Hutchinson (R) allowed to become law without signing it, bans local municipalities from passing nondiscrimination protections that extend beyond what the state offers. Because Arkansas offers no state-level LGBT protections, the law effectively guarantees the entire state continue to allow discrimination against LGBT people.
That, at least, is state Attorney General Leslie Rutledge’s (R) interpretation of the law. “It is my opinion that Act 137 renders the five ordinances unenforceable in this respect,” she wrote in an advisory opinion last week. The five ordinances refer to Fayetteville’s, along with similar laws passed in Little Rock, Hot Springs, Eureka Springs, and Pulaski County.
Officials in those municipalities are committed to enforcing their laws, however. They disagree with Rutledge’s interpretation, pointing out that Arkansas does have a state law that protects sexual orientation and gender identity — its anti-bullying statute. Rutledge argues it doesn’t count because it only covers public school students, but Act 137’s wording seems open to interpretation. Municipalities may not create a law, it reads, “that creates a protected classification or prohibits discrimination on a basis not contained in state law.” It doesn’t specify where in state law that classification must be found.
Fayetteville City Attorney Kit Williams doesn’t agree with Rutledge’s advisory opinion. “The protected classifications are certainly there in state law, and, therefore, this is not a new protected classification,” he explained, adding that he suspects Act 137 may violate the U.S. Constitution’s equal protection clause.
Only one other state, Tennessee, has a similar law banning municipalities from extending LGBT protections. Knoxville, Memphis, Nashville, and Davidson County have maintained their LGBT ordinances, but their legality under the state’s Equal Access to Interstate Commerce Act has not yet been tested.
A court date has not been set for the suit, but Fayetteville may yet be the setting for another showdown on LGBT rights — and a landmark court decision.