October 1, 2020
In The Public Interest

HRO Redux

HRO: Then and Now

Beginning in 2012 many of Jacksonville’s civic and business leaders, clergy and citizens worked together to expand protections under the City’s Human Rights Ordinance (HRO) to include sexual orientation and gender identity. For years, the  conversation was contentious, often painful.

But in 2017, Jacksonville’s city council passed the ordinance by a super majority vote (12-6). For the first time in Jacksonville’s history, sexual orientation and gender identity would be added to the list of protected categories – race, national origin, age, gender, disability, familial structure and religion. This expansion made it illegal to discriminate against gay and transgender people in the workplace, the housing market, and in  public accommodations. 

 The 2017 HRO has shone a bright light on a city that was late to recognize the humanity of gay and transgender people — New Orleans passed its Gay Rights Ordinance in 1991 — and has operated without incident or disruption since its passing on Valentine’s Day more than three years ago. Jacksonville had one of the worst ratings for LGBT rights in a major city before the HRO passed but great strides have been made since. A rating of 23 out of 100 in 2015 has since surged to 79 out of 100 in 2019, according to the Human Rights Campaign.

All changed on May 1.

How did this happen?

A small group of individuals and business owners, led by the socially conservative Liberty Counsel, filed suit with the state challenging the 2017 ordinance. Twice. 

In the first instance, the plaintiffs were allowed to amend their suit to address the court’s questions. In the second, the suit was “dismissed with prejudice,” which means that the judge found the action to be essentially without merit.

The plaintiffs appealed the lower court decision to the First District Court of Appeal.  The three-judge panel remanded the suit back to the lower court with the instruction that it stop enforcing Jacksonville’s ordinance with specific respect to LGBT people.  

Why did the FDCA make this decision?

Civic and business leaders, legal experts and attorneys, City Council representatives and Jacksonville’s own Office of General Council agree  that the decision results from a “hyper-technicality” based on the way Jacksonville’s ordinance appears on paper. Specifically, while the 2017 bill makes clear and specific reference to every section of the ordinance code where new and expanded language had influence, it did not show the line-by-line cross-outs, deletions, additions and changes in every single place where the code generally addresses sexual identity and gender expression.  According to the First District Court of Appeal, Florida Supreme Court decisions require such specificity.  

the final ordinance

The plaintiffs argue, in essence, that the lack of specific formatting in the ordinance compromises people’s ability to understand and abide by it. 

Ironically, all of the language that the Appeals Court  now requires was included in the failed 2012 version of the bill. Further, in 2017 that language was made available in a separate supplemental document to which anyone – including the City Council and folks like you and me – had easy access. But by not including the language in the document itself, the plaintiffs allege they were not given proper notice – as required by law – about what the ordinance would do, how it would impact their businesses, what it would require them to do and provide, or how to behave.  

The First District Court of Appeal agreed, based on decisions made by Florida’s Supreme Court. 

Most importantly, no determining entity – not even the Court of Appeal  – challenges the content of the ordinance or what it is intended to do:   afford gay and transgender people the full legal protections enjoyed by all other people.

But here we are.

Whats the problem?

“There was sufficient information in the bill that anyone would know exactly where the language would be inserted [in Jacksonville’s code] and what it would do,” observes Jimmy Midyette, attorney for the ACLU in Jacksonville. “It is everywhere it is supposed to be today. In fact, subsequent to February 14, 2017, the City went back and re-codified the entire ordinance code.” The Appeals Court  ruling, however, argues that that re-codification is irrelevant because it was meant to clean up logistics in the code: typos, name changes, inconsistent references and the like – not content. 

“The ordinance was seen by thousands of eyes – the OGC, City Council, even people who opposed it – and the vast majority understood what the bill was supposed to do. With a super majority voting for it, it’s devastating to think that a panel of three judges can overturn the protections that were clearly the will of the people and their leaders,” says Dan Merkan, Chair of the Jacksonville Equality Coalition.

What happens next?

Three options are commonly understood for moving forward:

1. Do nothing. Let it die. Allow LGBT people to exist without the protections promised to everyone else;

2. Appeal the First District Court of Appeals  ruling to the Florida Supreme Court; or

3. Re-write Jacksonville’s  ordinance to conform with the Appeals Court  ruling and introduce it to  City Council. Again. 

While political observers lean toward this third option, it’s not clear what course the City will follow. 

City Council President Scott Wilson notes that, of 19 Council representatives, a majority – ten – were not members of  the Council in 2017 when the ordinance was proposed, vetted and passed. These ten members, “literally have no clue of the nuances of the ordinance and its impacts.” 

But civic leader Audrey Moran, a vocal advocate of the 2017 bill, argues that  “There has not been a bill in the history of mankind that received more public notice and coverage than our HRO. Because we didn’t write out every single place in the code, they’re going to say that the law is unenforceable? That’s not right.” Furthermore, as candidates,  City Council members elected in 2019 were asked repeatedly if they would have voted against the HRO in 2017. They certainly knew the issue. It was not a secret.

According to FlaPol (https://floridapolitics.com/archives/330972-jacksonville-to-defend-lgbt-law) , the Office of General Counsel is “reviewing all opportunities at this point in order to advise City Council appropriately, and that includes all legal, appellate, or legislative options. The city takes this issue very seriously.” 

We should expect the City to defend its own ordinance and not just because of the years of scrutiny it endured or the breadth of popular support it enjoys. As the ordinance itself makes clear.  It:

  1. Affirms the City of Jacksonville as an “inclusive and welcoming community wherein no discrimination should occur;”
  2. Acknowledges the City’s significant and competitive role in Florida’s economic development in the United States and internationally;  
  3. Addresses the City’s desire to attract new industries, expansions, educational opportunities, cultural events, and tourism;
  4. Accommodates the needs, concerns and interests of Jacksonville’s diverse religious communities and small businesses; and 
  5. Recognizes that “a strong LGBT community is a vital thread in the diverse tapestry of this city.”

I trust that the City has not forgotten its promise to all of its people. But I also remember that the Mayor allowed the HRO to be ratified without his signature, and that the current City Council is not the body that passed the 2017 measure.

What can you do?

Write and call the Mayor’s office and your City Council representatives – both in-district and at-large – to let them know you expect our government to do the right thing: pass a new measure ensuring all of Jacksonville’s people will have basic civil protections. We all have – and add – value to the diverse tapestry of our city.

Link to City Council: www.coj.net/city-council.aspx — btw, this page also has instructions on how to identify your council members if you do not already know.

Written by
Robert Arleigh White

Robert Arleigh White has many years of experience managing nonprofit arts organizations in North Florida where he has also been active in promoting a host of arts related initiatives. In recognition of over 20 years of successful legislative and community advocacy, the City of Jacksonville proclaimed August 12 as “Robert Arleigh White Day,” and Jacksonville’s City Council similarly authorized a resolution in his honor. Previously, Mr. White served as the executive and artistic director for Theatre Jacksonville where he led the organization from near fiscal insolvency to become one of the State of Florida’s most successful artistic venues. While there, he also was directly responsible for the artistic direction of fifty plays and worked to produce dozens more. Currently, Bob is the principal for Robert Arleigh White + Associates where he consults with nonprofits on development, infrastructure and organizational storytelling.

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Written by Robert Arleigh White

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