City Commission chooses not to pursue nondiscrimination ordinance; instead will draft resolution in support of protected classes, including LGBTQ+ community
The consensus among City Commissioners after a three-hour work session on Sept. 8 was that a nondiscrimination ordinance was not the route to pursue to address discrimination toward the LGBTQ+ community in Great Falls.
They instead asked staff to start drafting a resolution that would state their support of protected classes of people, to include the the LGBTQ+ community, and to look at ways to improve the process or awareness of the process by which those who experience discrimination can file grievances.
Over the summer, members of the LGBTQ+ Center in Great Falls asked the City Commission to consider a draft nondiscrimination ordinance that largely focused on employment, housing and places of public accommodation, which includes a wide array of places such as restaurants, pools, skating rinks, hospitals, hotels and more.
In response, commissioners asked City Attorney Sara Sexe to research the issue and in July she issued a legal opinion stating that the NDO was unnecessary because existing federal and state law provided protections for the LGBTQ+ community in those areas.
Sexe wrote that the Bostock U.S. Supreme Court decision in June 2020 “clarified that protected class of sex includes LGBTQ+ persons. This inclusion has already been recognized and cited by a number of federal circuit courts. This decision is consistent with other Supreme Court cases recognizing other equal protections under the law for same-sex partners.”
Under the proposed ordinance, those who experience discrimination would file their complaint with the Montana Human Rights Bureau and then they could file in Great Falls Municipal Court, where the maximum civil penalty would be $9,500.
As it currently stands, a person can already file a complaint with the Human Rights Bureau, which investigates complaints of discrimination in employment, housing, education, public accommodations, credit/finance/insurance for sex and marital status only, or state and local governmental agency or municipality.
According to the Bureau, the protected classes are age, marital status, physical or mental disability, race/national origin, color, religion/creed, sex (including pregnancy, maternity, sexual harassment and sexual orientation, familial status for housing complaints, political ideas only in the provisions or government services or governmental employment, or retaliation when directly related to a protect class or protected activity.
According to the Bureau’s statistics in brief, which are posted on its website annually back to 2010, there were 449 total complaints statewide from July 1, 2019 to June 30, 2020.
Of those, 380 were employment, 19 were public accommodation and 9 were housing. According to the Bureau’s data, disability was the leading complaint issue, followed by retaliation complaints and male and female sex complaints combined was the third top issue of complaints, followed by age.
During that year, the Bureau found no reasonable cause for complaint in 281 cases and reasonable cause in 48 of them.
In Great Falls, Alicia Eatherly, the city’s fair housing specialist, told The Electric that she’s received two calls this year related to housing discrimination based on sexual orientation/gender identity.
“The vast majority of calls I receive related to discrimination have to do with assistance animals,” Eatherly said.
She said she talks through the details of lease agreements and tenant rights with callers and then refers them to Montana Fair Housing to request an investigation or file a discrimination claim and to Montana Legal Services to request legal counsel on how to proceed.
After listening to about two hours of public comment during the meeting and receiving more than 200 pages of written comments, four of the five commissioners said they didn’t think the NDO was the right avenue to address the issue in Great Falls, but would support a resolution stating the city’s position in support of protected classes and against discrimination.
Commissioner Tracy Houck said that she was disappointed by the misconceptions people had about the ordinance and that she thought it was the right thing to do.
“We should be welcoming and words are important,” Houck said.
Commissioner Owen Robinson said that, “I believe that there is no excuse for any kind of discrimination. At the same time, I don’t know what problem we’re trying to solve here.”
He said there are laws on the books but discrimination based on age and race still exists. He said he was pleased with the Bostock decision and that the laws addressing discrimination were better handled at the federal and state level than locally.
Robinson said he was afraid that by passing the NDO, “we’re not really accomplishing anything.”
Commissioner Rick Tryon said that he doesn’t question the existence of discrimination against the LGBTQ+ community in Great Falls, especially in housing.
“I have no doubt that there are dark corners of discrimination in this community” he said.
But, the question to him was whether legal protections already exist at the state and federal level and whether the city had the authority to create such a law.
“I don’t think we do. I think our job is to fix potholes and to spend money wisely. I don’t think our job is to make ordinances and start weighing in on these issues that are best handled at the state level and the federal level,” Tryon said.
Commissioner Mary Moe said that ugly things were said in the public comments, but that with or without the NDO there would still be arguments over discrimination and rights of the LGBTQ+ community versus religious freedoms.
She said that three months ago, she was prepared to go forward with the NDO, and now, after the Bostock decision, she considered approving it just for the message, “but I actually think it does harm to the very people I love.”
Moe said the other Montana communities that adopted NDOs did so before Bostock and if Great Falls adopted such an ordinance, it would be the first Montana community to say that Supreme Court decision doesn’t really count.
“We have what we want in Bostock,” she said.
Moe said the proposed NDO creates another hoop that no one in the other communities has ever taken advantage of.
City Attorney Sara Sexe said earlier in the meeting that she had spoken to city attorneys in the cities that had adopted similar ordinances and they told her no one had filed claims under those NDOs.
“There are avenues in place that are better, they are more likely to get the legal help that they need and are going to give them a more substantive remedy than what the city would apply”, she said. “Your best avenue is already there.”
But, she said she felt strongly that the city needed to do more.
“I think there is a need for action, I don’t think the NDO is the action that we need,” Moe said.
She said little data on discrimination exists in the city and the state and that it would be a start in examining the extent of the issue. She said she supported a resolution that would include all protected classes.
Mayor Bob Kelly said, “I truly believe Bostock is a game changer.”
He told those who came to ask the city for protection against discrimination, “we that there is discrimination and that we need to take action. I think your fear and discomfort is real in the community.”
Kelly said to those opposed to the ordinance that the commission’s unwillingness to pursue it wasn’t an endorsement of their arguments.
He said that adding another hoop with monetary limits, as the proposed NDO would do in the Municipal Court system, is a disservice.
“There are much better ways to resolve the problem,” Kelly said.
Staff said they would begin drafting a resolution, with commission input, that would be brought to the commission during a regular meeting and subject to public comment before adoption.
If you experience discrimination in housing, you can reach the city’s fair housing specialist at 453-4311, ext. 319; TDD 406-453-6327; or Montana Fair Housing; or contact the Human Rights Bureau for various discrimination complaints.