Whitefish drafts human rights law

A new law protecting people from discrimination based on sexual orientation and gender identity will go before Whitefish City Council next week.

Councilor Frank Sweeney recently asked for the non-discrimination ordinance to be placed on council’s agenda.

“This about human rights — it’s just that simple,” Sweeney told the Pilot. “This is a statement about who we are as a community.”

“It’s been clear for a long time that this community has a gap in its ordinances as it relates to this form of discrimination,” he added. “It’s very hard to make the argument, in a civil society, that discrimination for gender identity or sexual orientation is fair.”

A public hearing on the ordinance will appear on Council’s March 21 agenda.

A working draft of the non-discrimination ordinance says it is intended to “establish a civil rights policy prohibiting discrimination on the basis of actual or perceived sexual orientation or gender identity or expression.” If passed, the ordinance would go into effect in 30 days.

The draft states that the city finds discrimination in the areas of employment, public accommodations and housing to be a serious threat to the health, safety, and general welfare of the community. It also notes that discrimination in areas of public accommodation is economically harmful to a prosperous community and is detrimental to the welfare and economic growth of the city.

The draft says the city is committed to recognizing the “dignity of all its inhabitants and visitors, to celebrate all diversity, and to protect and safeguard the right and opportunity of all persons to exercise their civil rights and to be free from discrimination.”

Sweeney acknowledges that some may question why the ordinance is necessary when the issue hasn’t appeared to be a problem thus far.

“We have to set the tone for community values,” Sweeney said. “Nobody should question what we’re about. We want to make it clear.”

In December 2014, Council approved a community values resolution in response to a rally the previous month organized by Love Lives Here, a pro-tolerance group that is an affiliate of the Montana Human Rights Network. The group asked the city to create legislation prohibiting hate organizations from doing businesses or having offices in Whitefish.

Council stopped short of passing a “no-hate” ordinance, citing concerns with First Amendment rights to free speech.

Instead, council approved a resolution that declares the city’s intention “to take a stance in support of diversity, inclusion, free speech, and freedom of assembly for all inhabitants and visitors; and condemn ideologies, philosophies and movements that deny a quality of human rights and opportunities and challenge our constitutional freedoms granted by the United States and the state of Montana.”

Following passage of the resolution, in January 2015 the Montana Human Rights Network and the American Civil Liberties Union of Montana pushed Council to pass a non-discrimination ordinance that protects lesbian, gay, bisexual and transgender people from discrimination in housing, employment and public accommodations.

At the time council decided to wait on such an ordinance and look into its options.

Sweeney said the city has spent the last year doing that and the ordinance is just now ready to come before Council.

“It’s just taken that long as a practical matter,” he said. “We wanted to make sure the ordinance is successful. We patterned it after the Missoula ordinance, which has faced no litigation against it.”

Under the draft ordinance, people claiming discrimination may bring a civil claim to municipal court, but first must establish that the Montana Human Rights Bureau will not pursue the case. If the bureau does not, the person has 90 days to file in municipal court.

The draft specifically notes that the ordinance is not intended to abridge other rights, including protections of freedom of speech, freedom of association, and exercise of religion.

A handful of Montana cities have passed non-discrimination laws based on sexual orientation and gender identity.

Missoula first adopted a non-discrimination law in 2010 and Helena adopted a similar law in 2012, and Butte followed suit in 2014.

Bozeman adopted a non-discrimination ordinance in June 2014. Five Bozeman residents challenged the law with a lawsuit against the city, but last fall a state judge dismissed the suit in favor of the city.

The city of Dillon rejected a similar non-discrimination ordinance in 2014, saying the law overstepped city authority. Billings also rejected a non-discrimination ordinance in 2014.

Sweeney said he hopes these city non-discrimination ordinances will prompt a change in state law.

“I hope this sends a message to the state Legislature that the people of Montana support this,” he said. “The Legislature should have already done something about this.”

The state human rights act prohibits discrimination in housing, employment, education and public accommodations, based on sex, marital status, race, creed, religion, color, age, familial status, physical or mental disability and national origin.