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.