SLC Non-Discrimination Ordinance

Recently there have been a number of news stories (Deseret News, AZCentral) relating to the recent passing of a set of non-discrimination ordinances (pdf) regarding discrimination against people in Salt Lake City because of sexual orientation or gender identity (SLC City Code 10.04 and 10.05). What was also notable about the incident was that The Church of Jesus Christ of Latter-day Saints also expressed their support for the city ordinances because, "they are fair and reasonable and do not do violence to the institution of marriage."

So what is it about how these city ordinances are written that would bring official recognition and acceptance from the Church? Also after reading several comments posted after the news stories there were a number of concerns raised by people concerned with the implications of the new city ordinance. So what were the main concerns and how do these city ordinance address them?

Effectively these ordinances make it illegal to discriminate against someone in terms of employment and housing based on sexual orientation or gender identity. It establishes a procedure for filing complaints and resolving disputes that may arise due to allegations of discrimination. These city ordinances are in addition to the previous ordinances regarding discrimination based on race, gender, religion or country of origin.

In relation to these ordinances some of the main concerns that people voiced in the online forums were:

1. If I have a small basement apartment that I am renting out, will this force me to rent it out to a homosexual couple?

2. Will this force religious book stores, such as Deseret Book, to hire cross dressers?

3. If I fail to hire someone and it then turns out that they were homosexual, can they sue me for discrimination?

4. If I am single and living in an apartment with other single people, does this mean that a gay couple can move in to my apartment and I (and my landlord) can't do anything about it? As in, we can't object?

So how do these two city ordinances address these concerns, if at all?

First let us look at the exceptions provided. Both religious organizations and "expressive organizations" (such as the Boy Scouts of America) are expressly exempt from these city ordinances. While that solves some of the potential problems it does not address any of the above concerns. It turns out that the first three objections are addressed and the fourth may be addressed depending on how certain language is interpreted.

1. In this objection the concern is that under this ordinance a family living in their own home will be forced to rent out a basement apartment to a homosexual couple. This is expressly addressed in the exceptions. Effectively the ordinance exempts small privately owned apartments such as basement apartments because in order for the ordinance to apply you must,

"own an interest in or title to four or more single-family dwellings held for lease or sale at one time, and are located inside the City....[sell] two or more single-family dwellings inside the City, and in which the owner did not reside in the dwelling within the 24-month period preceding the sale or rental of the dwelling....use the service or facilities of any real estate broker, agent, or salesperson, or of any person in the business of selling or renting dwellings."

It also further specifies that owners are exempt if, "The rental of a dwelling that is occupied or intended to be occupied by no more than four families living independently of each other, when the owner actually maintains and occupies part of the dwelling as a residence."

That takes care of the first objection.

2. Will this force religious book stores, such as Deseret Book, to hire cross dressers? In terms of hiring practices the ordinance stipulates that employees must adhere to "reasonable rules and regulations and other job related qualifications required by an employer." This would include a dress code (no pun intended). There are also other provisions to accommodate for positions where "sexual orientation or gender identity are bona fide occupational qualifications for employment."

3. If I fail to hire someone and it then turns out that they were homosexual, can they sue me for discrimination? The concern here is that this city ordinance will create a special protected class of citizens that will be able and willing to sue at the drop of a hat, and that the major employers and landlords of the city will be open to all kinds of lawsuits for discrimination. This concern is addressed in its own section.

"This chapter does not create a private cause of action, nor does it create any right or remedy that is the same or substantially equivalent to the remedies provided under federal or state law. This chapter does not create any special rights or privileges which would not be available to all of the City’s citizens because every person has a sexual orientation and a gender identity."

This section is particularly interesting in that it prohibits a "private cause of action". This phrase is a technical legal phrase with a specific meaning, and with interpretations related to several supreme court cases. From Wikipedia, "Implied cause of action is a term used in United States statutory and constitutional law for circumstances when a court will determine that a law that creates rights also allows private parties to bring a lawsuit, even though no such remedy is explicitly provided for in the law. Implied causes of action arising under the Constitution of the United States are treated differently than those based on statutes."

In other words, if there were a private or implied cause of action then someone could bring a lawsuit against someone else even if there is no law expressly allowing it, i.e. there is no law expressly prohibiting the actions of the person being sued. What this means for the SLC ordinance is that someone cannot bring a lawsuit against someone else under violations of this city ordinance. The only way legal action can be brought under this city ordinance is through the complaint and arbitration provisions provided under the ordinance.

So in answer to the question, If I fail to hire someone and it then turns out that they were homosexual, can they sue me for discrimination? No. They can file a complaint which will then be investigated, but they cannot sue. Also this section in the city ordinance makes another interesting point. Even though it does not explicitly say it it implies that sexual orientation and gender identity is not a civil right, nor is it open to the same protections guaranteed to any other civil right protected by the Constitution or by law.

4. The last objection is not expressly covered in the city ordinance but depending on how a certain sentence is interpreted it may be. That sentence (in context) says,

"This chapter does not apply to a temporary or permanent residence facility operated by a nonprofit organization; a charitable organization; or a person in conjunction with a religious organization, association, or society, including any dormitory operated by a public or private educational institution, if the discrimination is based on sexual orientation or gender identity for reasons of personal modesty or privacy or in the furtherance of a religious organization’s sincerely held religious beliefs."

The key phrase here is "for reasons of personal modesty or privacy". While in context this may be a rather qualified statement, it may apply in most situations of concern where someone, or even a group of people, feel that they have a reasonable expectation of modesty and privacy. Thus in cases of college dorms and other comparable housing units, under this ordinance the tenants may insist on a having a reasonable expectation of modesty and privacy. In other words, in an apartment that can allow six single students, four of the residents can object to a homosexual couple moving in and the landlord can agree and not allow the gay couple to keep their contracts. As I said, this particular situation may not be covered by the city ordinance depending on how the language is interpreted. Still any major concerns may be covered under the section that explicitly prohibits the creation of a special protected class of citizens. As the code states, "This chapter does not create any special rights or privileges which would not be available to all of the City’s citizens". In other words, they will be treated like everyone else.

So while the non-discrimination ordinance allows for the basic, "common sense" rights associated with human dignity, it does not create a special, privileged class of people that have access to more rights, protections or remedies than others. It guarantees that homosexuals will be treated with fairness and equality, just like everyone else, while at the same time preserving the rights to religion and expression that all other people have. In other words, this city ordinance does not establish the rights and freedoms of one group of people by infringing on the rights and freedoms of another group of people.