There was no shortage of media and public attention paid recently to
the Shelby County Commission’s handling of my proposed ordinance
banning discrimination against gay and transgendered persons. And
rightly so: For the first time in Tennessee, a government body has
officially offered protection against discrimination to the gay,
lesbian, bisexual, and transgendered (GLBT) community.
But there was also some confusion in media reports about the effect
of the “watered down” version which ultimately passed, with some
speculating that, because of its generic language and status as a
resolution rather than an ordinance, it somehow lacked teeth. And, even
if it is legally enforceable (which it is), you could be forgiven for
thinking the commission’s final compromise was no paradigm of moral
clarity.
So, was it a cop-out or a historic first step? The answer is both.
Despite the understandable disappointment of those favoring the
original, more strongly worded version, opponents of unfair
discrimination can rightly celebrate the fact that more than 6,000
Shelby County employees have an enforceable right against
sexual-orientation/gender-identity discrimination that they did not
have a month ago.
A majority of the County Commission espoused the view that GLBT
employees ought not suffer discrimination. So it’s hard to understand
why we’d be afraid to say so in the text of the resolution. But to
placate those concerned (unnecessarily) about implying any endorsement
of homosexual conduct, the commission replaced my proposed language
banning discrimination on the basis of “sexual orientation, gender
identity or expression” with generic language banning all
discrimination on the basis of “non-merit factors.” I didn’t like it,
but I went along because the new language had the same effect.
Given the language’s blandness, one might wonder whether it clearly
protects GLBT employees (or, for that matter, straight employees if
they’re discriminated against by a gay supervisor). But fear not:
Commissioners made clear on the record the intent and effect of the
resolution.
The maker of the substitute resolution stated explicitly that he
intended it to apply to all discrimination, including that on the basis
of “sexual orientation.” Several other commissioners assented,
reaffirming their support for the original, more explicit ordinance and
supporting the substitute only because it accomplished the same end. No
commissioner objected to this interpretation, despite invitations to do
so. Most important, the county attorney advised on the record that the
commissioners’ on-the-record colloquy made that intent clear.
Lawyers call this “legislative history.” It’s a common tool used by
courts to interpret legislation whose text isn’t clear. A court
interpreting this act would either apply the general language to
protect GLBT employees or decide the language was ambiguous, look to
the legislative history, and reach the same conclusion.
Much was made in the media about the change from ordinance to
resolution. As a general matter, an ordinance carries more weight. In
this case, however, the distinction is largely technical.
To regulate private businesses, as I originally proposed, we would
need an ordinance. But the amended version dealt only with county
employees (not including school employees) and as such could be done by
resolution.
Even as a resolution, the measure is legally binding on the county
and enforceable in court. A gay/transgendered employee claiming
discrimination can file a grievance which can be resolved
administratively, if need be, by the Civil Service Merit Board. If the
employee gets no relief there, he or she can appeal the decision in
Chancery Court, using the resolution as evidence that the county
“arbitrarily and capriciously” violated its own policy.
For the record, neither my original proposal nor the final
compromise version required unisex bathrooms or abolished
gender-specific dress codes or provided protection for pedophilia,
bestiality, or any other activity forbidden by law. Those arguing the
contrary either fundamentally misunderstood the proposal or used
cynical scare tactics.
Going forward, we can do better. Proponents are considering bringing
a similar measure before the Memphis City Council soon. If that
happens, the council should consider a full ordinance which lists
prohibited types of discrimination, specifically including “sexual
orientation, gender identity or expression” and which applies to city
employees, contractors, and large businesses in Memphis. Hopefully,
leaders will see our resolution for what it is: an important step but
merely a first step.
Steve Mulroy is a University of Memphis law professor and Shelby
County commissioner.
