A new report by the Movement Advancement Project and partner organizations identifies local ordinances that extend anti-dicrimination protections to LGBTQ people as a target of state legislature’s “preemption” of local governments.
According to the report, over 300 cities and counties have passed ordinances to protect residents against discrimination based on sexual orientation or gender identity. But states are fighting back.
Of the twenty-eight states that have not passed LGBTQ protections, three—North Carolina, Arkansas and Tennessee—have passed laws that prohibit municipalities from doing so. In the last two years, twelve other similar bills have been proposed in eight states, according to Movement Advancement Project. And twenty states have considered bills to effectively prohibit local ordinances that allow for inclusive restrooms for transgender people.
Localities play a crucial role in those twenty-eight states with no LGBTQ discrimination protections. Thanks to local ordinances, significant numbers of residents in these states are protected against discrimination based on sexual orientation or gender identity. In Arizona, it’s 35 percent; Kentucky 27 percent; Nebraska 22 percent; Ohio 20 percent, and Mississippi 6 percent. (New Hampshire, South Dakota, and North Dakota are the only states among the twenty-eight where no locality has passed an anti-discrimination policy.)
The report notes that local ordinances “have also been instrumental stepping stones toward statewide protections.” Therefore, it concludes, “preempting local law. . .poses a significant threat to advancing LGBTQ equality at not only the local level, but at the state level as well.” State preemption nips the movement in the bud.
“Local cities have frequently led the way on LGBT issues,” Naomi Goldberg, Policy and Research Director for Movement Advancement Project tells The Progressive.
Courtesy Movement Advancement Project
Through local domestic partner registries and benefits, the marriage equality movement was able to push “higher” levels of government to act. But these too faced forms of state preemption, says Goldberg.
Between 2000 and 2004, she says, “a number of states passed statutes and constitutional amendments prohibiting states, cities, and even government entities likes universities from recognizing same-sex couples in any way—not just marriage, but comprehensive recognition through domestic partnerships or civil unions, and even more limited recognition through domestic partnership or benefits.”
Across the nation, local governments have been preempted on a wide spectrum of issues—like minimum wage, paid sick leave, climate change ordinances, bans on fossil fuel extraction, rent laws, protections for non-citizens, fair hiring practices for women and people with a criminal record, and police accountability.
Because it worked to push marriage equality from the bottom-up, the LGBTQ rights movement is uniquely positioned to highlight the danger state preemption measures pose to bottom-up democratic change.
As I have reported for The Progressive, those hoping to quash the seeds of progressive change have escalated their tactics for getting out in front of local lawmaking by preventing local residents from voting on local ballot measures that challenge state preemption. Localities are also being intimidated by “super preemption” bills that economically sanction local officials and governments that dare defy the state. Alternatively, corporations can sue municipal governments that challenge them.
Because it worked to push marriage equality from the bottom-up, the LGBTQ rights movement is uniquely positioned to highlight the danger state preemption poses to a fundamental theory of bottom-up democratic change, as well as the power of local lawmaking in forcing higher levels of government to act. Bottom-up law making has been used by movements that introduce and expand new rights. The suffragist movement also advanced the right of women to vote at whatever level of government it could, until the federal constitution was amended.
As many movements are targeted with state preemption, the power of local governments within the U.S. structure of law is emerging as a powerful coalition-building issue for the left.
The Movement Advancement Project’s definition of LGBTQ rights preemption includes laws that ban “raising the minimum wage [25 states] or guaranteeing workers a few paid sick days a year [22 states]” because those policies “happen to have a disproportionate impact on LGBT people.”
Courtesy Movement Advancement Project
The report is also concerned about the proliferation of state preemption that blocks local governments from assisting undocumented persons, and the impact on LGBTQ immigrants. It says there are approximately 267,000 undocumented LGBTQ immigrants in the United States, where at least thirty-three states have considered bills to limit local “sanctuary” policies or withhold funding from “sanctuary” cities in 2017. Nine states have passed these restrictions.
North Carolina’s infamous “Bathroom Bill” (HB2) from 2016 embodies this intersectionality. Not only did it ban local gender-inclusive bathroom policies, it also preempted municipalities from raising the minimum wage and strengthening child-labor protections.
The report concludes with a recommendation to build “cross-issue coalitions to fight against preemption.” But it notes that some forms of preemption are desirable.
“Historically,” it says, “preemption has been a federal tool to create a minimum level of protections, or a floor under which states, cities, or counties could not fall.”
For instance, the Civil Rights Act of 1964 “set a minimum standard of civil rights protections; it allowed states and cities to choose to increase protections, but not to fall below those provided and required by federal law. States have also used preemption in similar ways in the past, setting a minimum standard for cities, counties, and localities.”
This sort of protective preemption is a far cry from the regressive form, they write, that imposes “a maximum level of protection, or a ceiling . . . in an effort to decrease regulation and increase their own profit.”
The report helpfully explains the distinction between these two forms of preemption. But it leaves somewhat unresolved questions of what vision the emerging, intersectional anti-preemption movement could advance to protect municipalities from the repressive, ceiling-based, preemption, while safeguarding our federal and state floors.
Katie Belanger, Deputy Director of the Local Solutions Support Center, one of the groups that worked with Movement Advancement Project on the report, says, “A broad coalition of advocates, legal scholars, and local officials are working—through litigation, organizing, public education, and structural reform—to curb these abuses and ensure that local communities can build on state and federal law to protect their communities and advance new social, economic, and environmental justice measures.”
Simon Davis-Cohen is editor of the Ear to the Ground newsletter, an exclusive “civic intelligence” service that mines local newspapers and state legislatures from across the country.