Jacksonville, FL - As the new administration in Jacksonville prepares to take over, they’re given new insight in to a long running debate.
Mayor Alvin Brown requested several weeks ago that the Office of the General Counsel review local, state, and national laws dealing with protecting from discrimination based on sexual orientation and gender identity. On Brown’s last day in office, that 19 page study has been completed and released.
The OGC legal memorandum is not designed to be a policy opinion or directive, but rather an examination of the current protections- or lack thereof- on the books. While there have been no official plans released from any of the new City Councilmen to revisit a Human Rights Ordinance- like one which failed in 2012- it could be used as a reference on either reviving the debate or as part of the discussion.
It does highlight potential gaps and areas the City should consider moving forward.
Current protections and potential holes
Most of the memo focuses on outlining the protections which do exist at the local, state, and federal level. A lengthy review highlights federal anti-discrimination laws dealing with race, color, sex, religion, nationality, and more- even protections for pregnancy, disability, genetic information, and medical leave. The protection against discrimination applies, in varying levels, to wages, housing, employment, voting rights and other areas.
While the President issued an executive order prohibiting discrimination based on sexual orientation and gender identity, the memo notes this only applies to federal contractors and federal employees, and Congress has not acted to more broadly expand that.
The memo goes on to chronicle conflicting court opinions on whether discrimination based on sexual orientation or gender identity can be challenged under law that don’t appear to directly govern them- like a provision that extends protections based on “sex stereotypes”. The results of these challenges are largely mixed, according to OGC.
Laws at the state level are complicated- for this debate- by Florida’s expansion of religious freedom protections beyond what many other states have. The memo notes, for example, that in the failed 2012 HRO expansion in Jacksonville, there was an exception for religious freedom.
More broadly, race, color, age, disability, marital status and more are covered under Florida laws governing public accommodations, housing, and employment. A crime committed which targets people based on their sexual orientation is also classified as a hate crime in Florida, meaning the penalties would be more severe. While some companies choose to add specific protections for sexual orientation or gender identity, the OGC notes that Florida is one of 18 states which do not have any specific anti-discrimination laws for these areas.
Jacksonville’s prior fight
While the question has long laid below the surface, the issue of protecting against discrimination based on sexual identity or gender expression has become more prominent in Jacksonville over the past few years. Things hit a head in 2012 when the Council debated, and ultimately failed, to extend the City’s Human Rights Ordinance to also include “sexual orientation, gender identity, or expression”, or- a more narrow substitute- just sexual orientation.
“Jacksonville currently has no local laws explicitly prohibiting discrimination against the LGBT community,” the memo says.
Points to consider
OGC laid out several areas to consider if the issue of expanded anti-discrimination measures were to resurface.
First is the cost and liability the City could face under the expansion. The memo notes that a statewide study indicated the number of sexual orientation and gender identity related discrimination claims would not be projected to take a significant spike if new protections were added. The OGC took that one step further to say it would likely be a workload that can be absorbed by the investigating body that already operates over Jacksonville, the City’s Human Rights Commission.
The second consideration is the potentially symbolic weight the expansion would hold, in some cases just as significant as the binding legal effect itself. The memo cites a study which found just the presence of an official anti-discrimination policy may have been enough to raise awareness and lead potential discriminators- conscious or not about their actions- to reevaluate how they approach the situation.
Objections in prior debate from City Councilmen have included that protections already exist under current state and federal laws, so that may mean less of a need to add local protections. Putting aside the gaps noted in the memo, the OGC said the scope and how the potential new expansion would interact with state and federal laws is something that would have to be examined. Specifically, the new City protections would not be allowed to conflict with any established state or federal laws.
Finally, the OGC says the City must consider the ramifications any change in the anti-discrimination laws would have on Florida’s religious freedom legislation.
The OGC stressed that this memo is not a policy opinion, but a tool lawmakers can be used if- and likely when- this debate does surface once again. Ultimately, the memo makes it clear it’s up to the elected officials to determine “the best interests of the community they serve” and act from there.