Another fight over legal protection for gays -
Published Wednesday, January 18, 2012 at 1:00 am / Updated at 6:34 am
Another fight over legal protection for gays

A new debate is brewing at Omaha City Hall and in the State Capitol over who can qualify as a "protected class" under discrimination laws.

City Councilman Ben Gray says he plans to place a measure to ban discrimination against homosexual and transgender people on the council's agenda — as early as the end of the month or by late February.

But an Omaha state senator wants to bar cities and local governments from unilaterally creating such protected classes. Instead, the bill would grant such authority solely to the state.

The conflicting proposals are likely to reignite debate about more than a municipality's rights. The conversation will center on sexual orientation, the rights of private enterprise, religion and civil rights.

Local business groups and religious-based organizations were pitted against a cadre of supporters of the anti-discrimination ordinance during Gray's first attempt to place a similar measure on city books in 2010.

State and federal governments and the court system continue to wrangle with such issues. The U.S. Supreme Court last week upheld a "ministerial exception" to employment discrimination laws, a move that would often clear religious institutions to dismiss their leaders with legal impunity.

Beau McCoy

In the Legislature, State Sen. Beau McCoy's Legislative Bill 912 would amend state law to prohibit local governments from creating new classes of residents protected from discrimination.

Such changes could only come from the Legislature, the proposed law says.

"It just merely says that if we're going to change the protected classes ... we need to come to the Capitol to do it so that it's consistent across the state," McCoy said. "If it's the right thing to do, it ought to be the right thing to do border-to-border, not just in one city or municipality."

In Omaha, Gray said he knows of gay or transgender people who have left the city "because they saw it as an unfriendly place towards them."

"I've seen enough smoke that I think there's a fire," Gray said. "If we have a segment of our community that is not enjoying those freedoms, or are in fear of not enjoying those freedoms, government has an obligation to act."

Meanwhile, data from a federal auditor's review of discrimination cases filed in 2007 and 2008 suggest that only a fraction of complaints are based on sexual orientation.

During that period, roughly 3 percent of complaints that were filed cited sexual orientation as part of the basis for the complaint. The review included 22 states, including Iowa, all of which had laws to prohibit discrimination against gays.

Nebraska was not included because its discrimination laws — and federal regulations — do not cover homosexual and transgender residents.

Barbara Albers, executive director of the Nebraska Equal Opportunity Commission, said the agency does not track employment complaints based on sexual orientation.

"Most people know that it's not a covered basis," Albers said. But, she said, a lack of complaints shouldn't be interpreted to mean that the state hadn't had problems with gay discrimination.

Michael Gordon, executive director of the local gay rights group Citizens for Equal Protection, said gay residents, and particularly transgender ones, are often fired from their jobs or have trouble being hired because of their orientation.

"If people say there's not a problem, they don't know what they're talking about," he said.

McCoy — whose legislative district covers part of Omaha, Valley and a chunk of northwestern Douglas County — declined to say whether he'd support a statewide proposal to include the gay and transgender population as a protected class, because a specific proposal isn't on the table.

But McCoy said allowing municipalities to create their own policies and supersede the state's lawmaking authority could create a "patchwork quilt" of uneven regulations.

"Nebraskans want uniformity," he said. "If it's discrimination in Omaha, why wouldn't it be the same in Scottsbluff, Gering, Kearney, Grand Island, you name it?"

Ben Gray

Gray said Omaha needed to act on its own to pass expanded anti-discrimination regulations.

"When you look at various communities, they're made up differently," Gray said.

Gray has been working to revive an anti-discrimination proposal for several months. Last August, results of a poll commissioned by the nation's largest gay rights group indicated that a majority of Omahans favored passing an ordinance that would prohibit firing people because of their sexual orientation.

Language for his latest proposal is still being drafted, but Gray said the ordinance will cover the same core issues as his original proposal.

As originally written, the ordinance would have applied to all Omaha employers, employment agencies, labor groups and government contracts. Employers could be sued if they used sexual orientation or gender identity to reach decisions on hiring, firing or pay — but they would not be required to provide benefits to same-sex partners.

The first proposal also barred denying the use of a public facility or service based on sexual orientation or gender identity.

The Greater Omaha Chamber of Commerce's executive committee, some churches, Christian-oriented policy groups and others resisted the ordinance and urged council members to vote against it.

Pressure from the Archdiocese of Omaha prompted Gray to exclude religious groups from his proposal; his new ordinance will also exempt churches.

Chamber officials say the ordinance would impose ambiguous and unclear regulations and would be difficult for businesses to implement. Businesses, they said, opposed discrimination but also opposed additional city regulations for businesses that were best approved at the state or federal level.

The chamber would not elaborate on those arguments this week, citing the lack of final language for the latest proposal.

The 2010 effort eventually failed on a 3-3 council vote. Council member Franklin Thompson abstained from voting after calling for a public referendum on the issue.

This time, Thompson said he plans to vote on the matter, though he declined to say whether he would support the proposal.

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