POLICY BRIEF

Fayetteville Ghapter 119: Givil Rghts Administration

Understanding Fayetteville's New Nondiscrimination Ordinance
Overview: On Wednesday, August 20,2014, the Fayetteville City Council passed a proposed city
ordinance intended to prevent discrimination against
people on the basis of sexual-orientation and
gender identity (i.e. the gender a person claims, regardless of whether that gender matches their
biology). Despite multiple amendments made to the ordinance by City Council members, the ordinance
carries a number of unintended, negative consequences.
The Ordinance lnfrinqes Relisious Libertv
Chapter 119 opens private schools, churches, and ministers to the possibility of criminal prosecution
simply for adhering to their religious convictions.
* Churches can be prosecuted for employment decisions. Under this ordinance, a church can be
forced to hire a
gay
or transgender
person for a
"secular" job position (e.9. bookkeeper, receptionist,
etc.) or face criminal prosecution. This affects a church's ability to maintain integrity in staffing.
* Ministers can be prosecuted, personally. Many ministers perform weddings and other ceremonies
for non-church-members at venues other than the minister's church. Under Chapter 119, these
ministers could face criminal prosecution if they decline to officiate a same-sex ceremony.
* Private schools can be prosecuted for employment decisions. A private school can face
prosecution, just
like a church, if it refuses to employ someone due to sexual-orientation or gender-
identity. This affects the ability of private, Christian schools to employ teachers and faculty who share
the religious beliefs espoused by the school.
* Religious businesspeople can be prosecuted. ln other states, Christians who own bakeries, florist
shops,
photography studios, wedding chapels, and similar businesses have faced litigation and
prosecution for declining to host or take part in same-sex weddings or receptions due to religious
objections. The same can happen to religious businesspeople in Fayetteville under this ordinance.
The Ordinance Hampers Local Business
Chapter 119 opens private businesses to the threat of expensive criminal prosecution and the possibility
of new taxes.
t Businesses can face criminal prosecution. The ordinance opens businesses to criminal
prosecution if they are accused of firing, failing to
promote, or othensise discriminating against an
employee due to sexual-orientation or gender-identity. Even if the allegations prove untrue in court,
businesses could still be forced to spend thousands of dollars in legal fees. This could force small
businesses to close, and it will have a chilling effect on Fayetteville's business community.
* Businesses may be forced to let men use the women's restrooms. The ordinance prevents a
business from treating employees or customers differently due to gender identity, but fails to make
meaningful exceptions for restrooms. This inadvertently forces businesses to let biological males
who claim to be female use its women's restrooms, locker rooms, or changing rooms.
w A
{. Businesses may volunteer not to grow. Chapter 119 may discourage business growth. The
ordinance primarily affects businesses with five or more employees. Small businesses that employ
fewer than five people may find it less risky to maintain a smaller staff rather than expand, bringing
them fully under this ordinance.
Expands local government. The ordinance creates a Civil Rights Administrator tasked with
receiving, investigating, and mediating allegations of discrimination. The administrator also has the
power
to turn businesses over to the City Prosecutor's Office for prosecution. This constitutes an
expansion of local government.
{. May result in new taxes. The expansion of government caused by this ordinance will likely lead to
increased public spending. This means the City of Fayetteville may be forced either to cut existing
programs
or levy new taxes to make up for the additional revenue the ordinance requires.
* May drive away current and future business. Rather than deal with the prospect of new taxes or
expensive court battles with disgruntled employees, Fayetteville businesses may decide it is easier
to relocate outside Fayetteville, and new businesses may choose to locate outside Fayetteville for
the very same reasons.
The Ordinance Raises Public Safetv Goncerns
Chapter 1 19 raises serious safety concerns regarding public restrooms, locker rooms, showers,
changing areas, and similar facilities.
* The ordinance allows men to use women's restrooms. Chapter 119 says that a restroom may be
designated for one gender or the other, but it does not say that people must obey those
designations. Despite amendments made to the ordinance, Chapter 119 inadvertently lets biological
males who claim to be female use the women's restrooms, showers, locker rooms, changing areas,
and similar facilities at businesses and public locations.
* The ordinance could inadvertently give legal cover to sexual predators. As a result of Chapter
1 19, sexual predators may have an excuse to loiter in or around the opposite sex's restrooms,
showers, changing areas, or similar facilities. Because the ordinance lets biological males who claim
to be female use the women's restrooms, any man who wishes to
justify
his presence in, for
example, the women's restroom may claim he is actually a woman (i.e. transgender), and, therefore,
not committing any crime. Unless it can be proven
the man has another, "unlawful" motive, Chapter
1 19 might provide him with defense for his actions in court. This represents a grave threat to public
safety and wellbeing.