Judge Upholds Fayetteville Ordinance Despite State Law to the Contrary

Yesterday Circuit Judge Doug Martin in Washington County issued a summary judgment upholding Fayetteville’s so-called “nondiscrimination” ordinance despite a new state law, Act 137 of 2015, prohibiting counties and cities from creating protected classes on any basis not contained in state law.

The City of Fayetteville recently enacted an ordinance granting special protections based on sexual orientation and gender identity; the ordinance carries significant, unintended consequences we have written about in the past. Attorneys from Northwest Arkansas as well as the Attorney General’s Office brought a lawsuit against the city, alleging the city’s ordinance violated Act 137, because it created new, protected classes of citizens not found in state law. Judge Martin, however, ruled in favor of the city ordinance.

In a nutshell, Judge Martin’s ruling plays loose with facts and with the language of Arkansas state law. The ruling hinges on Arkansas’ anti-bullying law intended to help prevent bullying in public schools; the anti-bullying law addresses bullying that is based on, among many other things, sexual orientation or gender identity. Judge Martin essentially claims this anti-bullying law gives the City of Fayetteville a basis in state law upon which to enact its ordinance.

The problem is Arkansas’ anti-bullying statute does not create any protected classes. It is designed to protect students enrolled in a public school from physical harm and harassment. Judge Martin’s ruling implies that because state law says a public school student should not be bullied due to their sexual orientation, sexual orientation amounts to a protected class under state law.

The same anti-bullying law says a public school student cannot be bullied because of his or her “academic status.” By Judge Martin’s logic, Arkansas’ anti-bullying law arguably makes education level some sort of protected class, meaning a person might enjoy more or less protection depending on their intelligence or education.

The fact of the matter is Arkansas’ anti-bullying law is irrelevant to this conversation. Arkansas’ Civil Rights Act addresses protected classes of citizens. The state Civil Rights Act provides protections based on immutable characteristics like race and national origin. Sexual orientation and gender identity are never mentioned. Judge Martin’s ruling drastically misconstrues state law in order to create new, protected classes. It’s unthinkable.

Judge Martin’s ruling likely will be appealed to the Arkansas Supreme Court. Depending on how the Arkansas Supreme Court rules, there is a slim possibility the issue could be appealed further in federal court. In the meantime, the Arkansas Legislature could opt to amend Act 137 to clarify cities and counties cannot create protected classes on a basis not found in the Arkansas Civil Rights Act.

One thing is for sure: This debate is far from over.

Photo Credit: “Old Main from the northwest, University of Arkansas, Fayetteville, Arkansas (autumn)” by Brandonrush – Own work. Licensed under Creative Commons Attribution-Share Alike 3.0 Unported.

Kroger to Offer “Trans-Inclusive” Employment Benefits

Recently Kroger–the nation’s largest grocery store chain–announced it would begin offering “trans-inclusive” benefits to non-union employees in 2016.

Under the new policy, as of January 1, Kroger employees who disagree with their biological sex will be eligible for up to $100,000 for “gender reassignment” surgery, drug therapy, and other procedures.

The problem is Kroger appears to be caving to political pressure from relentless activists like the Human Rights Campaign–and they’re doing so at the expense of their employees. Here’s how.

In the summer of 2014 Dr. Paul McHugh, former psychiatrist-in-chief at Johns Hopkins Hospital, wrote in the Wall Street Journal, (more…)

Judge Forces State to List Same-Sex Couples’ Names on Birth Certificates

Today Pulaski County Circuit Judge Timothy Fox issued a ruling forcing the State of Arkansas to put the names of three same-sex couples on children’s birth certificates.

Each couple has been legally married since the U.S. Supreme Court redefined marriage last summer, and each has a child conceived via an anonymous sperm donor.

In each case, only one spouse—the woman who actually gave birth to the child—is a biological parent of the child. According to the Department of Health, only the biological mother of the child may be listed on the child’s birth certificate; you cannot list the name of a second, unrelated “mother” on the certificate.

The three couples each sued the state, and today Judge Fox ruled in their favor, saying the the birth certificates can be amended to list a second “mother.”

Here’s the problem: Birth certificates exist to record that a child was born and who the child’s parents are—not who happens to be married to one of the child’s biological parents.

Birth certificates are not simply pieces of paper. They are vital records that need to be accurate and deserve respect. We should be careful not to let them become mere political ploys.