Could Georgetown become the next Kentucky city to pass a Fairness Ordinance?
Mayor Tom Prather informed the city council last Monday that there will be a first reading on a Fairness Ordinance at the next council meeting on Aug. 26. This comes after discussion was stopped two years ago by the council after a raucous public debate on the issue.
There are some differences this time compared to last time, primarily there is an actual ordinance for the council to consider and supporters believe there has been case law at the state and federal level that has guided the creation of the ordinance. The new ordinance has multiple interest from councilmembers including Tammy Lusby Mitchell, Mark Showalter and David Lusby.
“The interest in a fairness ordinance has not wanted and three councilmembers have asked about it,” Prather said. “It was council decision to end discussion two years ago, and it is the interest of three councilmembers to bring it back up.”
He said since it can be a hot topic, discussion has been what is the best way for the council and the community to bring the issue forward.
“Two years ago, we tried to construct an ordinance in open meeting, so this time an ordinance was crafted,” Prather said. “There never was an ordinance to vote on before.”
Councilwoman Karen Tingle-Sames requested that the Aug. 26 meeting be for informational purposes only, with a first reading to follow two weeks later and a second reading and a vote a month from now.
“I got a preview of the Fairness Ordinance, and it is more detailed than what we had before. I’m sure there will be people who want to speak on both sides of the issue, and have the next meeting to go over the details,” she said during the meeting. “Could we have a workshop so everyone could learn what is in it, then have a first reading for comment?”
“Given that we have teed it up two weeks in advance, I think that is sufficient,” Prather said. “This ordinance is straight-forward. The language is straight-forward and now we have legal understanding of the ordinance and the court cases that have evolved since we last discussed it. We don’t see sense in dragging it out.
“With the work that has been done so far, I’m much more comfortable with any potential impact on business owners than before.”
Added Lusby, “We felt that announcing it now, having a first reading and letting people come and talk and then have a second reading, is plenty of time. To have a discussion, then a first reading where everything gets repeated and a second reading, you can beat an issue to death.
We want to handle this like any other ordinance.”
City administrators believe legal decisions will help clarify some of the issues around some of the language, particularly sexual orientation and gender identification classification.
“I think today we have the benefit of some legal decisions that we believe give clarity to this ordinance and how it applies that will give comfort to some people,” Prather said. “I think all of our councilmembers believe in treating people fairly and equally. Some people have been concerned about restricting the rights of certain business owners. That is where Devon has taken great care to understand our proposed ordinance and what other cities have passed so we are in a position to address the questions that concern most folks.”
City attorney Devon Golden said they have fully revamped the human rights section.
“In our current code of ordinances, we have provisions for employment, housing and honestly it was written in 1960-something and it was very bare bones,” she said. “It doesn’t even say fairness ordinance. We are revamping our entire human rights section.”
“What is in our code is way outdated and probably reflects civil rights law when it was written,” said Andrew Hartley, chief administrative officer. “Ninety-eight percent of what is in the ordinance is already state law. The bulk of this is cleaning up our law.”
Golden said they are adding two classifications to the section.
“We are adding sexual orientation and gender identity. We are adding two protected classes that aren’t currently protected under state law,” she said. “Local jurisdictions have the authority to write and pass fairness ordinances that include those classifications with exemptions and state law that would trump local law.”
One of those state laws include the Kentucky Religious Freedom Act.
“We have included that language directly and repeated it in our ordinance as a reminder and acknowledgement of what the ordinance intends to do, which is do not intend to hinder any protections of state law.”
Tingle-Sames said she is trying to understand what is in the ordinance, and that is why she wanted the extra discussion session.
“I think we as council members need to understand it and let the public understand it. What does gender identification mean?” she said. “I know both sides of the issue have thoughts, and the civil rights ordinance did need updating. But it gets complicated when you throw in gender identification and I want a definition of that. There’s so much I don’t know and understand yet. If I don’t understand the definition of gender identification, how can I understand the rest of it?
“I think court cases have clarified some issues, but the way I’m interpreting the ordinance, it seems to contradict what Kentucky has put in.”
One of the court cases supporters believe clarifies the interpretation is the Hands On Original t-shirt case out of Lexington where the local company refused to make customized shirts for the Lexington Pride Festival. The Lexington Human Rights Commission said the company discriminated against the people wanting the shirt for the Pride Festival, but court rulings have gone in favor of Hands On.
The way supporters are interpreting those decisions is that a company cannot create something that goes against their religious beliefs. But if say, a same-sex couple comes in and wants t-shirts for a softball team or a family reunion, they can’t deny making those shirts. That ruling is on the fast track to the Kentucky Supreme Court.
“What that tells us, and under this ordinance and being proven by case law, that a company does not have to create something that goes against their religious beliefs. But you can’t refuse to do something for someone because of their protected clause,” Prather said. “We think the court decisions has given a clear line between what is legal and what is not legal, and that provides enough clarity for this to work.”
But Tingle-Sames said, “A big concern is having a misunderstanding and a business gets drug through the courts and have to hire an attorney to prove nothing happened.”
For the councilmembers sponsoring the ordinance, much of their desire to bring it forward is to have it heard and that the environment has changed.
Lusby Mitchell was not on the council at the time.
“I think it is important to people, and I didn’t like my understanding that the people trying to bring it forward was cut off,” she said. “In my opinion, people should be brave enough to hear both sides. It seemed disrespectful to bring it to its fruition at the time. They felt they were’t heard, and my promise was to bring it up.”
“We were just having to have a discussion on where to go. I made the motion to continue having the discussion, but it was a 4-3 vote with one absent to stop discussion and it hasn’t been brought up since,” Showalter said. “I think it needs to be discussed in front of council, and everybody listen, and that is the key word - to listen - and make the best decision to move forward.”
Lusby said he had to leave during the discussion because his mother was in declining health, and when he left was when the vote was taken.
“I think we have become more familiar with the objective over time and I think the environment has changed,” he said. “The environment is always changing. When we talked about smoking, we wanted to protect farmers and now we want to ban vaping. I have three children, two in their 20s and a late teen, and they don’t look at this issue the same way older generations do, so yes it is constantly changing.”
Lusby Mitchell also thinks the environment in Georgetown has changed and continues to change.
“This ordinance mirrors a state law already in place and adds five words that allows we can’t discriminate,” she said. “My understanding is that people are discriminated against, and I know people who say they have been discriminated against in housing and other ways.
“What I know of Georgetown is that is is a warm, inclusive town and I can’t imagine people would discriminate for any reason, but if we have to have a law that makes sure they aren’t discriminated against, then we need it,” she said. “It is no one’s intention to discriminate against anyone, including a religious person. With this ordinance, we would want to uphold the human rights of anyone, including religious people. The fear that people are going to be forced to do something outside their religious beliefs should be assuaged by state law.”
She says she has heard mostly from people who are for it.
“Most of the objections are about the Hands On case, and they are not aware of the case law,” she said. “This doesn’t have to do with business, but has to do with human rights. You can’t discriminate people who believe differently than you, just like a Hindu or a Jew. There are laws in place for that, so what is the difference.”
Steven McClain can be reached at firstname.lastname@example.org.