By Lauren Penington and Zach Wendling
LINCOLN — Lincoln citizens may soon vote on whether to accept the City Council’s new Fairness Ordinance after a group filed a referendum petition.
The Lincoln City Council passed its Fairness Ordinance on Feb. 14 to update Title 11 of the Lincoln Municipal Code dealing with equal opportunity and expanding employment, service and housing protections.
Less than a day later, the Nebraska Family Alliance (NFA) launched a campaign to force the Lincoln City Council to rescind the ordinance or place it on the ballot. The alliance stated in a news release that the ordinance defies both common sense and the will of the people.
The ordinance expands protections for gender expression, sexual orientation and military or veteran status as protected classes.
Proposed by Lincoln City Councilwoman Sändra Washington, the ordinance also updates definitions of marriage, race and national origin, and strengthens disability and service animal protection.
“This isn’t just about sexual orientation and gender expression, though I recognize what a big deal this is,” Washington said. “It was also about everyone else who also will stand further protected, further supported from discrimination.”
Washington sponsored the new legislation after working on it for about two and a half years, working to find the right words and legal verbiage. The ordinance is an updated version of a 2012 version that was passed by the City Council but recalled by a successful referendum petition of 10,000 signatures. The City Council did not rescind that ordinance or put it to a vote, so it had been in limbo since.
The Council passed the new ordinance 5-0, with Councilmembers Tom Beckius and Richard Meginnis absent from the vote.
Upon filing its petition, the NFA released the following statement:
“Our message is simple: Let Us Vote. The Lincoln City Council should not be allowed to circumvent the will of the citizens of Lincoln.”
Since filing the referendum, NFA has trained over 260 volunteers to circulate petitions around the city.
Nate Grasz, policy director for NFA, said the organization believes every person should be treated with dignity and respect, but the City Council’s ordinance doesn’t promote fairness or equality.
According to the ordinance, there are varying levels of fines that could be imposed on those who violate the policies.
The Lincoln Commission on Human Rights could authorize the City Attorney to seek up to $10,000 for an initial discriminatory practice. If another offense occurs within five years of the initial complaint, the penalty maximum raises to $25,000. If someone commits two or more violations in a seven-year period from the date the first complaint is issued, the penalty could be up to $50,000.
“The ordinance redefines sex to mean male, female, neither or both and seeks to allow the government to impose really heavy, life-ruining fines on people or businesses who disagree with a particular ideology,” Grasz said.
The redefinitions around sex stem from the 2020 U.S. Supreme Court decision in Bostock v. Clayton County.
In that case, justices ruled 6-3 that discrimination on the basis of gender identity and sexual orientation in the workplace violates Title VII of the Civil Rights Act of 1964.
However, according to Grasz, redefining sex in public accommodations may have consequences for women and girls, an argument often made by conservative groups on the national level.
“The ordinance would allow men who self-identify as female to have access to women’s restrooms, locker rooms, dressing rooms, and if someone objected to that they could be punished and liable for an illegal act under the ordinance,” Grasz said. “The policy allows for the violation of women’s bodily privacy and safety and spaces that are intentionally and specifically designed for biological women.”
Washington said the belief that the ordinance is a bathroom bill is incorrect, as the updates do not demand business owners do anything to their restrooms. There are laws defining criminal activities, she said, and Title 11 doesn’t weaken them.
Beyond the changes relating to sexual orientation and gender identity, the ordinance also prohibits discrimination related to hair texture and hairstyles. Washington said she had worked with and talked to Indigenous men with long braids who were told to cut their hair because it wasn’t appropriate and Black women who were asked to change their hair so their braids, cornrows or twists didn’t show.
Abbi Swatsworth, executive director of OutNebraska, an organization that empowers LGBTQ Nebraskans, said in a statement that it’s disappointing but not surprising people are trying to undo the accomplishment of the Fairness Ordinance. These people, the statement said, are also spreading misinformation about Lincoln’s transgender community.
“Let us be clear: the use of anti-transgender tropes and creating anti-transgender fear in Lincoln is distressing and frankly harmful,” Swatsworth said in the statement. “Transgender people are not a debate or a hot-button issue. Trans and non-binary people are your neighbors even if you think you have never met someone who is transgender.”
Passing the legislation came as a relief to Washington, who is Black and a lesbian. She’s lived in Lincoln since 1990 and was present in 2000 when voters approved the state constitutional amendment limiting legal marriage to between one man and one woman.
She said she’s been fortunate to have worked in federal government, where the risk of discrimination from being Black and a lesbian is minimized, but there still weren’t many federal protections.
As Washington and others walked through Title 11 of the municipal code to draft changes, they looked at cases being brought to the Lincoln Commission on Human Rights and wanted to make certain those were addressed with additional protections or stronger language, Washington said.
“This is also sort of a momentous occasion of being able to say our city is a city for everyone, and it should not matter who you are or who you love,” Washington said. “No one should be denied housing, service or be fired from their job just because of who they are or who they love.”
The city charter requires those filing a referendum petition to collect signatures amounting to 4% of the participating voters from the last state governor election — or 4,137 signatures in this case — in the 15 days after an ordinance passes. If successful, the City Council must rescind the ordinance or place it on the ballot.
The NFA states all circulated petitions must be returned to its building by Feb. 28 at 5:30 p.m.
“The ordinance penalizes citizens for expressing a worldview different from those currently in positions of political power,” Karen Bowling, the executive director for Nebraska Family Alliance, said in a news release. “No person should be charged with devastating fines by an unelected commission for simply upholding the privacy rights of women and girls in bathrooms and changing rooms.”
According to Bowling and Grasz, this decision lies with Lincoln’s citizens, not the City Council.
“We think it’s important that the City Council doesn’t circumvent the will of the people who have asked that they have the right to vote on this issue by putting it on the ballot,” Grasz said.
To Washington, a vote on civil rights by majority rule doesn’t make sense.
“If they had put the Civil Rights Act to a majority vote of the entire populace of the country, I don’t know where we would be,” Washington said. “Very rarely do people in the majority offer people in the minority their civil rights. That just— it doesn’t even feel constitutional to me.”
However, she said anyone does have the right to petition the City Council and file for appeal, including NFA.
If the Nebraska Family Alliance gets enough signatures, Washington said she is willing to take the ordinance to a vote.
When asked how that would go, Washington said: “I am confident the majority of Lincolnites believe a welcoming city should respect every resident.”
Editor’s Note: This article was updated at 8:42 p.m. March 7, 2022, to clarify the caption and headline.