The Sioux Falls City Council chickened out of advancing an ordinance last year to protect LGBT residents from discrimination. Braver Brookings has picked up the slack by amending its human rights ordinance to buff up its protection of LGBT residents from discrimination.
The marked-up version of the ordinance shows the key language changes. Previously, Brookings ordinance labeled discrimination based on marital status, gender identity, or sexual orientation as “unfair” but acknowledged that state law and city ordinance did not prohibit such discrimination. The previous ordinance allowed the city to combat such discrimination through “education” but not investigate or bring formal action against such discrimination “until permitted by state law.” The new ordinance strikes those references to the gap in state law and adds marital status, gender identity, and sexual orientation to the previoulsy established protected classes of race, color, sex, creed, religion, ancestry, national origin, familial status, and disability.
The new Brookings ordinance also adds the words “actual or perceived” before each of those classifications. Brookings Human Rights Commission chair Steve Bayer explained that addition at the council meeting Tuesday night:
Bayer said it meant any discrimination, “if you would look at me and decide I would fit a category that you don’t like, whether I actually fit that category or not. For instance, if you perceive someone as homosexual and they’re not, that would be real or perceived, if you’re being discriminated on based on the aggressor’s perception of who you are” [Jill Fier, “Council Bolsters City Code,” Brookings Register, 2017.09.28].
In other words, if you think I’m too in touch with my feminine side and you take to calling me homophobic slurs, Brookings will consider you to be discriminating based on sexual orientation, even though you are misperceiving my sexual orientation.
Brookings may be inviting South Dakota’s conservative legislators (including Brookings backyarder Senator John Wiik of District 4) to try following the example of red states like North Carolina that have passed state laws to revoke the will of more progressive local governments. Keep an eye out for Legislative overreach this January!