Brookhaven officials will hold a community meeting about a possible LGBTQ nondiscrimination ordinance as they also consider taking the path of passing an unenforceable resolution stating their support for the LGBTQ community.
The public meeting follows months of behind-the-scenes lobbying by local activists including state Rep. Matthew Wilson and Councilmember-elect Madeleine Simmons. The group is urging the City Council to pass a nondiscrimination ordinance to protect minority groups including LGBTQ people. However, an apparent informal opinion from City Attorney Chris Balch that the city may not have the authority to pass such an ordinance has made Councilmember Linley Jones cautious. She has suggested a resolution could be the best way for Brookhaven to show support for LGBTQ people.
A resolution, however, has no real power and is not supported by the activists asking the city to pass an ordinance that would ban local businesses from discriminating against minority groups, including LGBTQ people.
“I want to do what is in best interest of having protections for the LGBTQ community and I want public input on that,” Jones said. “I have reason to believe an ordinance is the best way, but that is not written in stone.”
Jones said another option the city has is to pass a resolution “sending a strong message of where we stand” on LGBTQ equality.
The group working to get the city to pass the LGBTQ nondiscrimination ordinance recently asked to meet with Jones to discuss their support of an ordinance. Jones decided to open that meeting up to the community. She invited Simmons to co-host the “community conversation” on Dec. 2 from 6-7 p.m. at City Hall, 4362 Peachtree Road.
The meeting, Jones said, is “with an eye toward exploring the best and most legally sound way of supporting the community” and to provide legal protections to LGBTQ people “to the extent cities can.”
Jones asked Balch for a legal opinion in April about such an ordinance. She said the opinion was not finalized. Balch and the city administration declined comment about what Balch may have said to council members about his concern about the city passing an LGBTQ nondiscrimination ordinance. A city spokesperson also said Balch has not received any direction from the City Council on drafting an ordinance or a resolution.
“This is a fairly new proposal, and so I think we need to thoroughly vet what we adopt so it can withstand any legal challenges,” Jones said. “[W]e’re being very careful in Brookhaven.”
“The problem we have here is we have a class of people that should be protected [by state and federal law], but is not,” Jones said. “This is a civil rights issue to me … and I want what we pass to be able to withstand legal scrutiny.”
A wave of DeKalb County cities has passed in recent months local nondiscrimination ordinances that ban private businesses from discriminating against minority groups, including against people based on their sexual orientation and gender identity. The growing movement is in response to state legislators’ attempts to pass a so-called “religious freedom” bill that advocates say would open the doors to businesses and other organizations being able to freely discriminate against LGBTQ people.
In April, gay resident and activist Richard Rhodes asked the council to pass such an ordinance during public comment at a council meeting after seeing neighboring cities doing so. He also provided council members with information about other local LGBTQ nondiscrimination ordinances.
Jones asked Balch for a legal opinion following Rhodes’ request, but declined to say what Balch may have said about the ordinance before issuing a final recommendation other than to say it would not be a written opinion.
Rhodes died in July. He was 81.
State Rep. Wilson, who is gay and lives in Brookhaven, said he spoke to Rhodes in the months before he died. He said Rhodes told him that in his discussions with council members that Balch told them the city did not have the authority to pass an LGBTQ nondiscrimination ordinance. Rhodes’ friends have picked up the cause to get the ordinance passed for him after his death.
“[Rhodes] told me in his conversations with some council members that the city has thought about a resolution as being a starting place to look at the issue,” Wilson said. “I have spoken to the mayor and several council members and the mayor over the summer and that was referenced … that the city attorney had some concerns.”
Simmons said she has “heard rumblings” that Balch has said he has concerns about an LGBTQ nondiscrimination ordinance as well but has not spoken to him directly.
Wilson said he has told the council that a resolution declaring support of LGBTQ people rather than an enforceable ordinance is “not good enough” because an ordinance gives the city the power of enforcement, while a resolution is simply a declaration.
“We have tried to make it very clear to all council members that just passing a resolution that proclaims Brookhaven as an open and welcoming community is not good enough,” Wilson said. “Because it doesn’t provide any resolution if discrimination actually occurs.”
“The group I’ve been working with over the past couple months has been doing the research and providing the resources that show the city does indeed have the authority to pass a full ordinance,” Wilson said. “And that is why we have seen so many neighboring cities doing so.”
Wilson and Simmons have been working with Rhodes’ close friend Jon Greaves, along with Brookhaven residents Glenn Phillips, Mary Ann Hawthorne, Joyce Lanterman and Jeff Hancock. Also involved is Cathy Woolard, a lobbyist for Georgia Equality who formerly served as president of the Atlanta City Council when it passed its version of an LGBTQ nondiscrimination ordinance nearly 20 years ago. Wilson said a draft ordinance based on the months of work with Georgia Equality was submitted days ago to the city for review.
Glenn Phillips said he and his husband moved to Brookhaven Heights four years ago from Seattle and became active in supporting the ordinance after Rhodes’ death. They are hopeful an ordinance that provides protections to LGBTQ is passed in the city they call home. “An ordinance has teeth and provides a process for people to file a grievance,” Phillips said.
Jones said the city’s intent is to provide protections for the local LGBTQ community that the state and federal governments have failed to do. For instance, it is legal for employers in Georgia to fire someone because they are gay because there is no state law prohibiting discrimination against LGBTQ people. There is also no federal law protecting LGBTQ people from being discriminated against.
After Jones asked Balch for an opinion on an LGBTQ nondiscrimination ordinance in April, the issue was dropped for several months before being revived during the mayoral and City Council elections. Georgia Equality in October endorsed Ernst for reelection and Simmons for City Council. The endorsements were in part based on their support of an LGBTQ nondiscrimination ordinance.
At a Reporter candidate forum in October, Mayor John Ernst said it was a “no-brainer” that the city would pass an LGBT nondiscrimination ordinance, perhaps by the end of the year. When asked about Jones’ comments that a resolution rather than ordinance may be the best option for Brookhaven, Ernst said he was unaware of what she has said, and that the community can weigh in on Dec. 2.
Wilson said he was concerned the city may not pass an LGBTQ nondiscrimination ordinance but after hearing Ernst’s comments during the mayoral candidate forum he believed it would happen. The mayor however only votes in case of a tie. There are four council members and three votes are needed to approve an ordinance.
“Our group has pushed back [against a resolution] because it is not sufficient to meet our goals and certainly not the goals of [Richard Rhodes] before he passed away,” Wilson said.
Simmons said in an email she was in support of the city passing “a legally enforceable nondiscrimination ordinance.” She also said she believes the city needs an LGBTQ nondiscrimination ordinance and is “hopeful one will be passed.”
Georgia Equality Executive Director Jeff Graham said several attorneys have reviewed local LGBTQ nondiscrimination ordinances “and their opinion is that [they are] enforceable.”
“The city attorneys at the five other municipalities that have passed similar ordinances over the past year have reached the same conclusion,” he said.
The General Assembly’s attempts over the past several years to pass a so-called “religious freedom” bill prompted the city of Doraville in 2018 to approve a local nondiscrimination ordinance including protections for LGBTQ people.
Advocates say if a statewide “religious freedom” bill is approved it would open the doors to allowing businesses and other organizations to freely discriminate against LGBTQ people as going against their personal religious beliefs.
Ordinances in other cities
Following in Doraville’s steps with nondiscrimination ordinances protecting LGBTQ people were the cities of Chamblee, Clarkston Dunwoody and, on Nov. 18, Decatur. The city of Atlanta has had such an ordinance on the books for nearly 20 years.
The local ordinances are essentially a workaround of state law and federal law by making it illegal in their cities to discriminate against LGBTQ people in areas of employment, housing and public accommodations, such as restaurants, hotels and doctor’s offices.
Dunwoody’s ordinance puts in place a process for people to report alleged discrimination and has city-appointed mediators and hearing officers investigate such claims.
If a hearing officer determines a complaint is unfounded, the complainant can be fined up to $1,000. If the hearing officer determines the alleged discrimination did occur, the violator could be fined $500 for a first offense and $1,000 for more offenses, according to Dunwoody’s ordinance.
Additionally, the Dunwoody ordinance formalizes that the police department will receive training on hate crimes and report hate crimes to the FBI.
The Dunwoody ordinance exempts religious corporations or associations and nonprofit private clubs that are not open to the public.
Doraville Councilmember Stephe Koontz, who is transgender, led her city’s effort to pass its ordinance. She said the city is legally able to enforce its nondiscrimination ordinance because it is tied to the occupational tax permit all businesses must apply for to operate in the city.
In July, the city of Sandy Springs became one of the first municipalities in the state to approve a hate crimes ordinance that includes protections for victims targeted for being in minority groups, including sexual orientation and gender identity. That is a municipal version of laws that have been adopted at the federal level and in 46 states, but not yet in Georgia.
City Councilmember Andy Bauman led the effort to pass the hate crimes ordinance and said at the time he had been asked about working on a nondiscrimination ordinance that would include protections for LGBTQ people. He said he wanted to see how the nondiscrimination ordinances played out in other cities first.