12-year-old with two moms wants answers on city’s lack of a nondiscrimination ordinance
Dozens of residents packed the Overland Park council chambers Wednesday — some leaning against the walls or sitting on the floor — to voice opinions on whether the city should become one of the last Johnson County suburbs to pass an LGBTQ nondiscrimination ordinance.
But Overland Park’s legal team is skeptical about whether the city could enforce such a law, given state laws protecting religious freedom.
Around 50 residents spoke in favor of an ordinance to protect the LGBTQ community from being denied housing, employment or services from businesses because of sexual orientation or gender identity.
Around 11 p.m., after more than two hours of discussion, resident Una Nowling stood at the podium and shared stories of being “a victim of anti-transgender discrimination right here in Overland Park.”
“I’ve been thrown out of a business. I’ve been refused service. I’ve had hate speech used against me by staff at local businesses,” said Nowling, an intersex and transgender woman. “And I’ve had numerous close friends who have had the same happen to them.”
Only a handful of residents spoke against the proposed law, arguing it would be difficult for a local government to enforce and less effective than a statewide law. In February, Overland Park passed a resolution rejecting discrimination and encouraging the Kansas Legislature to enact nondiscrimination laws.
But without federal or Kansas laws in place, many said it’s time for the city to do what the state has yet to accomplish — and to follow other Johnson County cities that have already passed protections, including Leawood and Shawnee, which ratified ordinances in August.
Overland Park’s legal team, though, argued enforcing such an ordinance might not be easy. Michael Koss, senior assistant city attorney, warned that the Kansas Preservation of Religious Freedom Act could allow any person or business to claim a religious objection, potentially limiting the enforcement of nondiscrimination ordinances.
“If a person or business can just opt out of a nondiscrimination ordinance by making a religious objection, we don’t think a nondiscrimination ordinance will ever be enforced in Kansas,” he said. “And an ordinance that’s only enforceable in the absence of a religious objection offers protections to the LGBT community that are theoretical.”
Some cities throughout Johnson County have added religious exemptions to their nondiscrimination ordinances. But Koss said he is seeking guidance from the state attorney general’s office to determine if there is a “path to overcome a religious objection.”
Koss said this has not been an issue brought to Kansas courts, but cited a Kentucky Supreme Court case, in which a Lexington company claimed a religious objection while refusing to print gay pride T-shirts. The Lexington Human Rights Commission argued the company violated the city’s fairness ordinance banning LGBTQ discrimination. The case is in its seventh year of litigation.
The American Civil Liberties Union has said that religious freedom acts like the one in Kansas could limit LGBTQ protections and lead to nondiscrimination laws being challenged in court. But Wednesday night, Letitia Harmon, policy director of the ACLU of Kansas, argued the city does have the authority to enforce such an ordinance.
“There’s nothing that prevents you from doing it,” Harmon said. “The Religious Freedom Act protects expression of religious freedom. It does not protect those who would leverage their religion in order to discriminate against someone’s civil rights.”
Kansas Rep. Stephanie Clayton, an Overland Park Democrat, said the state act is “benign,” arguing it would not provide businesses with the right to deny LGBTQ people services.
“I understand your fears and concerns, but I do not find them to be valid,” she said. “Because I never would have voted for garbage that would have prohibited that.”
Many opponents have cited fears that a nondiscrimination ordinance could limit religious freedom. But several LGBTQ advocates, including some rabbis, pastors and other Christians, offered their own interpretations of the Bible and what it means to be Christlike, encouraging Overland Park to accept everyone as equal.
As the meeting dragged on close to midnight, Curt Skoog, chairman of the council’s Community Development Committee, said he would talk to Mayor Carl Gerlach and the legal department to determine how to move forward. City staff would need to draft a proposed ordinance to be voted on by the committee before it would go to a vote by the full council.
“If you support this nondiscrimination ordinance, you may very well make enemies with some very, very influential organizations. And who knows, it may cost you an election,” said Patty Markley, a former Republican state representative who lost to a conservative challenger in last year’s primary. “But I know in my bones that issues surrounding LGBTQ rights are the civil rights issues of our time. And history will judge how we approach these issues.”