Merely a First Step

The county's antidiscrimination resolution isn't ideal, but it's a start.

| June 11, 2009

There was no shortage of media and public attention paid recently to the Shelby County Commission's handling of my proposed ordinance banning discrimination against gay and transgendered persons. And rightly so: For the first time in Tennessee, a government body has officially offered protection against discrimination to the gay, lesbian, bisexual, and transgendered (GLBT) community.

But there was also some confusion in media reports about the effect of the "watered down" version which ultimately passed, with some speculating that, because of its generic language and status as a resolution rather than an ordinance, it somehow lacked teeth. And, even if it is legally enforceable (which it is), you could be forgiven for thinking the commission's final compromise was no paradigm of moral clarity.

So, was it a cop-out or a historic first step? The answer is both. Despite the understandable disappointment of those favoring the original, more strongly worded version, opponents of unfair discrimination can rightly celebrate the fact that more than 6,000 Shelby County employees have an enforceable right against sexual-orientation/gender-identity discrimination that they did not have a month ago.

A majority of the County Commission espoused the view that GLBT employees ought not suffer discrimination. So it's hard to understand why we'd be afraid to say so in the text of the resolution. But to placate those concerned (unnecessarily) about implying any endorsement of homosexual conduct, the commission replaced my proposed language banning discrimination on the basis of "sexual orientation, gender identity or expression" with generic language banning all discrimination on the basis of "non-merit factors." I didn't like it, but I went along because the new language had the same effect.

Given the language's blandness, one might wonder whether it clearly protects GLBT employees (or, for that matter, straight employees if they're discriminated against by a gay supervisor). But fear not: Commissioners made clear on the record the intent and effect of the resolution.

The maker of the substitute resolution stated explicitly that he intended it to apply to all discrimination, including that on the basis of "sexual orientation." Several other commissioners assented, reaffirming their support for the original, more explicit ordinance and supporting the substitute only because it accomplished the same end. No commissioner objected to this interpretation, despite invitations to do so. Most important, the county attorney advised on the record that the commissioners' on-the-record colloquy made that intent clear.

Lawyers call this "legislative history." It's a common tool used by courts to interpret legislation whose text isn't clear. A court interpreting this act would either apply the general language to protect GLBT employees or decide the language was ambiguous, look to the legislative history, and reach the same conclusion.

Much was made in the media about the change from ordinance to resolution. As a general matter, an ordinance carries more weight. In this case, however, the distinction is largely technical.

To regulate private businesses, as I originally proposed, we would need an ordinance. But the amended version dealt only with county employees (not including school employees) and as such could be done by resolution.

Even as a resolution, the measure is legally binding on the county and enforceable in court. A gay/transgendered employee claiming discrimination can file a grievance which can be resolved administratively, if need be, by the Civil Service Merit Board. If the employee gets no relief there, he or she can appeal the decision in Chancery Court, using the resolution as evidence that the county "arbitrarily and capriciously" violated its own policy.

For the record, neither my original proposal nor the final compromise version required unisex bathrooms or abolished gender-specific dress codes or provided protection for pedophilia, bestiality, or any other activity forbidden by law. Those arguing the contrary either fundamentally misunderstood the proposal or used cynical scare tactics.

Going forward, we can do better. Proponents are considering bringing a similar measure before the Memphis City Council soon. If that happens, the council should consider a full ordinance which lists prohibited types of discrimination, specifically including "sexual orientation, gender identity or expression" and which applies to city employees, contractors, and large businesses in Memphis. Hopefully, leaders will see our resolution for what it is: an important step but merely a first step.

Steve Mulroy is a University of Memphis law professor and Shelby County commissioner.

Comments (8)

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Now, I hope that all Memphis Flyer readers will take the time to send a letter to President Obama so President Obama will keep his campaign promise to his millions of GLBT supporters and follow Professor Mulroy's courageous example and end "don't ask, don't tell" in the United States Military, which is the largest employer in the United States.

"A recent Washington Post/ABC News poll found that 75 percent of respondents supported allowing gays to serve openly in the military, up from 62 percent in 2001 and 44 percent in 1993."

Posted by Phillip on 06/11/2009 at 2:11 PM


I've worked with gays in the military and had no major problems, but don't you think you should have used a poll of military servicemembers not average citizens? That would be a better sample to justify your case.

Posted by yanqui69 on 06/12/2009 at 3:48 PM

Steve Mulroy stated, "For the record, neither my original proposal nor the final compromise version required...or provided protection for pedophilia, bestiality, or any other activity forbidden by law."

I am not a lawyer, so I have a question? Are not homosexual acts considered criminal acts according to current Tennessee Code SS(legal symbol) 40-35-110 to 40-35-112.

If they are, then how can City Council pass a law that violates state law? Is there some other type of legal precedent that allows that or are there any other judicial opinions that set a different precedent other than the law?

Thanks for any clarification.

Posted by yanqui69 on 06/12/2009 at 3:56 PM

Google Texas v. Lawrence for your answer. Sodomy laws violate the individual right to privacy, and being gay in and of itself was rarely illegal, sex acts like sodomy, fellatio, and cunnilingus have been outlawed at various times in various states, for both straight and gay couples I might add.

Posted by BlissLaw on 06/13/2009 at 11:29 AM

That's why I say screw the law.

Posted by sbanbury on 06/14/2009 at 3:42 PM

Well, this sounds something like the DoD's policy, except that it doesn't give special rights to gays, just outlines what sexual harrassment is (which goes both ways, pardon the pun). You can be gay, but cannot commit the sexual acts, some of which straight do also partake in too.

If I were gay, I wouldn't be happy unless the state laws were abolished. Until then, I see the city council's decision as against state law. Is that not illegal?

Posted by yanqui69 on 06/15/2009 at 1:58 PM

Non-discriminatory laws infer that the government can intervene into a private corporation or business and force them into hiring all classes of people. Trespassing laws keep undesirables off one's property that they choose not to associate with. By extension, a company or corporation has the same rights as individuals holding title to the company. As a private entity, it has the right to choose with whom it will associate and when. The 1st and 14th amendment intends that the property owner has rights of association, assembly, and speech in regards to his property, possessions, business, etc. This negates the hiring of certain classes of individuals if so desired. The government does not own a person or the extension; a company or corporation. Since 1964, the Civil Rights Act has allowed a 'slippery-slope' in this area to include all forms of behavior to be accepted by law. The emphasis on 'group rights' strips away individual rights. By implication, the government is stealing jurisdiction from individuals and their extensions of business. By altering the original intent of the Civil Rights Act to include behavior along with race, the door is open for forced acceptance of all types of behavior. Where does one draw the line if we use arbitrary ethics as our foundation for truth?

Posted by CHG on 06/18/2009 at 5:12 AM

Ah, the Commerce Clause that the Federal Government used to usurp power from the States granted them in the 11th Amendment.

Posted by yanqui69 on 06/18/2009 at 3:48 PM
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