The city’s so-called fairness ordinance — shelved for a decade after a successful petition drive stopped it from taking effect without approval of voters — is coming back in a broader proposal to revise an entire section of the city’s municipal code.
Lincoln City Councilwoman Sändra Washington introduced the ordinance, which would revise an entire section of the city’s code dealing with equal opportunity. The ordinance is on first reading on Monday’s council agenda. A public hearing will be Feb. 7.
“I think the time is right,” said Washington, one of three openly gay members of the seven-person Lincoln City Council.
While the change is important for Lincoln to be competitive in recruiting and retaining young talent, updating the city’s municipal code to be more inclusive is also the right thing to do, she said.
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“It’s always a good time to do right, to do good,” said Washington, a fact she said she was reminded of recently while rereading Martin Luther King Jr.’s letter from the Birmingham jail.
As the original fairness ordinance did, the proposed code revisions redefine “sex” to include sexual orientation and gender identification but it also includes numerous other changes to the 66-page ordinance that spells out the duties of the Commission on Human Rights and the protections provided to Lincolnites in housing, employment and public accommodation.
The proposed ordinance adds military personnel and veterans as a protected class. It also updates several definitions including the definition of marriage (to recognize divorce and separation), race (to include hair texture and protected hairstyles) and national origin (to include tribal affiliation).
The revisions also replace outdated or archaic language, and update and strengthen definitions of disability protections and those regarding service animals.
Washington said she’s been working on the issue for about two years, during which time a landmark 2020 U.S. Supreme Court decision ruled that Title VII of the Civil Rights Act of 1964 includes protection based on sexual orientation and gender identity.
She said she has reached out to former City Attorney Jeff Kirkpatrick, who made an unsuccessful bid for mayor, former Councilman Carl Eskridge, who was on the council in 2012 when it passed the first fairness ordinance, fellow council members and advocates.
They discussed the best way to proceed and decided an update to the entire section of the municipal code was best, in part because it hadn’t been updated in more than two decades, she said.
They also decided to wait for a ruling from the U.S. Supreme Court in Bostock vs. Clayton County, which happened in June 2020, expanding the definition of sexual discrimination to include sexual orientation and gender identity.
That case was related to employment, but the Biden administration applied the language to the federal Housing and Urban Development and Equal Employment Opportunity Commission, which is facing a legal challenge by 20 states attorneys general, including Nebraska’s.
Given the high court ruling and changes at the federal level, it makes sense to align city code with federal law and to include public accommodation, so the city is operating by the same standards in all areas, Washington said.
“You should be able to get a job, stay employed, find housing, and go to the movies, go out to eat, go to the grocery store,” she said. “You should be able to do all those basic functions, no matter who you are or who you love.”
She said the proposed revisions maintain religious exemption language.
In 2012, both the Omaha and Lincoln city councils passed ordinances banning discrimination of people based on sexual orientation and gender identity. Omaha enacted the ordinance, but the Nebraska Family Council and Family First led a successful petition drive, gathering more than the 10,000 signatures required to stop the Lincoln ordinance from taking effect and mandating it be put to a vote or retracted.
The City Council did neither and it’s been in limbo since, despite a completely new City Council and a new mayor. Advocates of such a change have been divided about how to move forward, worrying about not having the resources to mount a successful challenge at the ballot box.
Advocates had been focusing their efforts on changing state law, which has yet to happen, and Washington said when she was appointed to the council that she’d need assurances from advocacy organizations of their support.
Both OutNebraska, a local advocacy group, and the ACLU of Nebraska, said they support Washington's proposal.
“We are supporting the update,” said OutNebraska Executive Director Abbi Swatsworth. “I think it's important for Lincoln to be a modern, welcoming city.”
She said they’re still working to make changes at the state and federal level but that doesn’t have to happen in a vacuum.
“I think it’s time to do it,” she said. “We’re supportive of the effort and we’ll do all we can to see it succeed.”
Danielle Conrad, executive director of the ACLU of Nebraska, said it’s a different time than 12 years ago — pointing to the high court’s most recent ruling and one in 2015 that legalized same-sex marriage — and Washington’s broader proposal is a strong one.
“We’re most excited about the message it sends that says we are welcoming and excited to have young, vibrant people as part of our community, that we welcome and respect them,” she said.
She noted that Omaha’s had such an ordinance on the books for years, and the Nebraska Equal Opportunity also has expanded its definition of sex.
“What we can learn from those examples is we have nothing to fear. Religious liberty and fairness can co-exist,” Conrad said. “Those are values we all hold dear and cherish.”
The Lincoln Chamber of Commerce also backs Washington’s proposal, having long supported more inclusive language.
Jason Ball, the new chamber president, said more than 300 cities have such an ordinance and it’s important for Lincoln to recruit and retain young talent.
“We believe fairness ordinances like this create a more inclusive, welcoming work environment,” he said. “Having that kind of culture creates a stronger community.”
The proposal seems likely to be approved by the council. Both Tom Beckius and James Michael Bowers, the council’s two other openly gay members, said they support Washington’s proposal, and other members have voiced support, including Tammy Ward, a longtime advocate of the Fairness Ordinance.
“It begs the question for me, if not now, when? There’s never a perfect moment,” Ward said. “Some people have been waiting their whole lives for that day in Lincoln. And it’s the right thing to do.”
What happens after that remains the biggest question, although Washington said she would support taking the question to a vote of the people, if necessary.