Mobile could become the third city in Alabama to include sexual orientation and gender identity as a protected class within its non-discrimination ordinances.

The city plans to consider concerns raised by the local LGBTQ community about a lack of legal protections preventing discrimination in housing, public accommodation and employment in the aftermath of homophobic statements made recently by Mobile County Treasurer Phil Benson.

The Mobile mayor’s office and City Council Vice President Levon Manzie have requested copies of existing ordinances adopted elsewhere for review ahead of next week’s council meeting. Activists like Kimberly McKeand are expected to be at Government Plaza to request that an elected official sponsor an ordinance.

“We were asked whether we would support an ordinance,” said George Talbot, spokesman for Mayor Sandy Stimpson. “We haven’t seen an ordinance … It’s something we can look at.”

Manzie said he’s interested in beginning the process.

“Certainly, I am in favor of no one being discriminated against,” Manzie said. “I had to experience that in my 36 years and that is something I don’t believe any citizen in our community ought to have to go through. I am interested in hearing the various arguments.”

Mobile city officials will likely examine the only two ordinances that have won approval in Alabama – in Birmingham (September 2017) and Montevallo (April 2018).

No other city has taken up the issue, and the ordinances within the two cities vary in their approach toward applying protections.

‘Infancy’ stage

The annual Birmingham Pride Parade as pictured here in June 2017. Birmingham is one of only two cities in Alabama to offer legal protections for the LGBTQ community. (Joe Songer | jsonger@al.com).

In Birmingham, the first city to adopt an ordinance, the efforts to craft new regulations lean heavily on a city Human Rights Commission. The commission is charged with hearing complaints about discrimination and will advise city leaders on how best to resolve complaints.

That commission, however, wasn’t formed until 15 months after the City Council passed the ordinance 7-0.

Jerome Dees, who heads the commission, which consists of nine council appointees, and six mayoral appointees, described it as being in its “infancy” stage. He said the group has yet to hear any complaints or offer solutions to city leaders.

“We are still working out with the city attorney exactly what the full scope of the commission’s duties and responsibilities will be,” said Dees, a Birmingham attorney. “We are finalizing what our role is going to be.”

Dees said the slow process toward launching the commission stemmed from a changeover in municipal leadership: William Bell was mayor at the time that the ordinance passed. Bell, however, soon lost a mayoral runoff election to Randall Woodfin.

“There was a lot of transition at that point, so it’s been a good eight to nine months to almost a year before people were appointed,” said Dees. “And so we’ve been meeting once a month and going through our bylaws. Hopefully, in our next meeting, we’ll be finalized and a draft can be submitted to the City Attorney’s Office.”

Talbot said that Mobile has a human rights commission, though it hasn’t met in quite some time. He said the city, if it decides to add sexual orientation and gender identity as a protected class, could reassess that group’s mission. He also said that there could be ways to involve Mobile United, which pursues a goal of “uniting the community through deliberative dialogue” via forums and community events.

Dees said that if Mobile or any other city wants to replicate Birmingham’s approach, he suggests city leaders “clearly lay out the precise scope and procedures” of the commission so that once the members are named, “they are closer to hitting the ground running.”

Also, he said, there has to be some sort of funding to support investigations.

‘Long process’

In Montevallo, a Shelby County community of 6,600 residents, the ordinance places the city’s clerk in charge of fielding complaints and sending them to Municipal Court for a hearing. If a judge determines an act is discriminatory, the perpetrator will pay $100 fine for each day the discrimination occurs.

Mayor Hollie Cost said the process in Montevallo – home to a small liberal arts university – was a long journey that required two panel presentations, three small breakfast gatherings, survey administrations and two large community dialogue-and-deliberation sessions.

The council voted 4-2 in support of the ordinance, with at least one council member raising concerns that there wasn’t any problems in Montevallo that warranted action.

Cost said that Montevallo, like Birmingham, has yet to take up a discriminatory circumstance protected through the ordinance.

Cost said that for Mobile or any city considering a similar ordinance, support from local leaders is essential. In Montevallo, a locally-based LGBTQ advocacy group pushed for the ordinance and received support from Cost and other elected officials.

“I highly recommend that supporters of the ordinance talk to council members and work toward more community understanding before they put it to the council for consideration,” the mayor said in an email to AL.com. “We went through a very intense and long process to work through the details of the ordinance with the entire community.”

She added, “While the process was challenging and minds were not necessarily changed through the process, I truly believe our community is stronger because of it. Individuals’ thoughts and perspectives were heard and people truly felt respected.”

‘Local issue’

In Mobile, upset still exists over Benson’s comments posted on the local Republican Party Facebook page. He posted his comments under a National Review article about a cake shop owner who was sued for refusing to make a gender transition cake.

Benson wrote, “This poor guy needs to move to a place he is wanted. Freaking queers have gotten too much sympathy. A real abomination.”

On Monday, McKeand and other LGBTQ activists urged the Mobile County Commission to consider sponsoring a non-discrimination ordinance. Commissioners, though, said they didn’t have the legal authority to do so.

No county in Alabama has adopted a similar ordinance. Mobile County does have non-discrimination language it its employment policies that mirrors federal law.

Alabama is one of 30 states that doesn’t fully protect the LGBTQ community. Most of the states with full protection are located on the East and West Coasts, or the upper Midwest. None are in the South.

But if state governments are declining to address the issue, city halls like Birmingham and Montevallo have shown that there’s a second way.

“There are a lot of good ordinances out there and the states without statewide non-discrimination laws – you have to rely on the cities for protections,” said Christy Mallory, state and local policy director with the Williams Institute based at the University of California, Los Angeles School of Law.

Sexual orientation and gender identity are not spelled out as a protected class in the landmark Civil Rights Act of 1964, which outlaws discrimination based on race, religion, national origin, and sex.

Federal courts and the Equal Employment Opportunity Commission, though, have ruled that the law’s ban on sex discrimination also prohibits bias based on sexual orientation or gender identity.

Three cases will go before the U.S. Supreme Court next year to determine whether someone can be fired for being gay or transgender. Mallory said the court’s rulings could offer a clearer framework for states regarding protections.

For now, she said, “it’s a very local issue.”

‘Sea change’

In the South, it’s also a mixed bag of results. No cities in Tennessee and Arkansas have included sexual orientation and gender identity as a protected class because state law prohibits cities from doing so, according to the Movement Advancement Project which tracks the ordinances nationwide.

But in Florida, 60% of the LGBTQ community is protected through some sort of city or county action. In Kentucky, it’s 33%.

Alabama, because only Birmingham and Montevallo have taken action, only 5% of the state’s approximately 117,000 LGBTQ population is protected. Alabama’s coverage is slightly lower than 6% in Mississippi and 7% in Georgia.

“These ordinances are important for making sure that LGBTQ people have access to legal options if and when they face this type of discrimination,” said Joshua Burford, director of the Invisible Histories Project in Alabama, who also teaches LGBTQ history at the University of Alabama. “Having it on the books allows people to understand that there will be consequences for discrimination.”

Recent polling, taken ahead of this weekend’s 50th anniversary recognition of the Stonewall uprising in New York City – considered as a pivotal event in the gay rights movement – shows that a majority of Americans believe discrimination exists against gays and lesbians.

A CBS News poll, released Monday, shows that 44% of Americans believe there is a lot of discrimination against gays and lesbians. Another 56% of Americans believe there is a lot of discrimination against transgender people.

On the political spectrum, a large majority of Democrats and independents support same-sex marriage. But Republicans are more divided: 49% believes same-sex marriage should be illegal, versus 46% who support it. That’s quite a shift from 2012, when 55% of Republican voters opposed.

Alabama, considered one of the most Republican states in the U.S., has a relatively small concentration of LGBTQ residents at an estimated 3.1% of the total population. No other state in the South is lower, and only four others – Montana, North Dakota, South Dakota, and Idaho – have a lower percentage of its population consisting of members of the LGBTQ community.

Burford said that a non-discrimination ordinance, if voted on by a city, sends strong signals.

“They do serve a symbolic function to show that a place is more progressive and that symbolism radiates out,” said Burford. “It can signal a sea change in an area.”