An analysis of the so-called “Fairness Ordinance” by a Nebraska Family Alliance Attorney
As it did in 2012, the ordinance passed last week by the Lincoln City Council, is a “bathroom bill” that opens up all women’s dressing, locker and bathrooms to men who “identify as female.”
But it is much worse than a “bathroom bill” now.
Purporting to punish discrimination in housing, employment and public accommodation, the ordinance redefines “sex” to mean “female, male, neither or both” and
- includes “Sexual Orientation shall mean an individual’s emotional, romantic, or sexual attraction or non-attraction to individuals of a different sex, the same sex, or more than one sex.”
- “gender identity or expression” (an individual’s actual or perceived gender-related identity, expression, behavior or other characteristics of and individual with or without regard to their assigned sex at birth)
as protected categories in public accommodation, housing and employment.
“Public accommodation” is incredibly broad, and it encompasses “all places or businesses offering or holding out to the general public goods, services, privileges, facilities, advantages, and accommodations for the peace, comfort, health, welfare, and safety of the general public….”
That’s pretty much everywhere and anything.
No Real Protection for Religion
While a separate part of the city code states that “any place of public accommodation owned by a religious corporation which gives preference in the use of such place to members of the same faith shall not be guilty of a discriminatory practice,” this ordinance does not exempt the pastoral staff or ministry team, as individuals, from liability for discrimination (see below.)
“this ordinance does not exempt the pastoral staff or ministry team, as individuals, from liability for discrimination “
A Speech Code
Instead of limiting “sexual harassment” claims to the workplace, the ordinance opens up sexual harassment to include places of “public accommodation.” And harassment is not just physical harassment or unwanted touching but includes “verbal conduct” (i.e., speech) that might have the “effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile or offensive environment in employment, housing or public accommodation.”
So it is a speech code as well. If I don’t use a person’s preferred pronouns, or if I dare to talk publicly about human sexuality in a way that might have the “effect” of intimidating or offending them–or interfering with their work performance–I might be liable for a discriminatory act.
“So it is a speech code as well. If I don’t use a person’s preferred pronouns, or if I dare to talk publicly about human sexuality in a way that might have the “effect” of intimidating or offending them–or interfering with their work performance–I might be liable for a discriminatory act.”
It also broadens the penalties in the “conversion therapy” ban passed last year to include punishment for anyone trained in counseling (including pastors) who would counsel a minor away from transgenderism or homosexuality. Conversion therapy “shall mean ANY counseling, practice or treatment that seek to change a minor’s sexual orientation or gender identity.” Provider “shall mean any person licensed, certified or registered to provide professional counseling…” or “ANY OTHER PERSON” who performs counseling as part of that person’s professional training.
So, if pastors had counseling as a part of their professional training, they might be fined if they talk in biblical terms to a minor who is struggling with gender identity. (In the definition of “employer,” 501c and “religious organizations” are excluded. But pastors, church workers, youth leaders, etc. are NOT excluded from the definition of “any other person” who performs counseling.)
Imposing Draconian Fines
The adjudicating tribunal is the mayor-appointed Lincoln Commission on Human Rights who can assess damages and attorney’s fees against the offending person. In addition, they can impose fines ranging from: $10,000 for first offenses; $25,000 for each repeated offense within 5 years; and $50,000 for each repeated offense within a 7-year period.
Those are the definition of “draconian” and would quickly bankrupt any person or business.
This is a very bad, poorly written ordinance, and it should be repealed, either by the city council or by a vote of the people. The ordinance is the subject of a petition drive that would force the city council to rescind it or put it to a vote of the people of Lincoln.
