The Billings City Council began working on the finer points of a nondiscrimination ordinance Monday, but struggled to progress and even considered putting the issue to a public vote.
Before a packed house, council members went paragraph by paragraph through a draft ordinance that is similar to NDOs adopted by adopted by Bozeman, Butte-Silver Bow, Helena and Missoula.
But there are differences. The Billings ordinance adds the phrase “non-binary,” meaning a person who identifies as neither a man or a woman to the other listed categories lesbian, gay, bisexual and transsexual and obesity.
There were no votes taken on the ordinance, only suggestions as to how the draft language might be changed to dodge legal challenges and avoid ambiguity. As the work moved forward over the first two hours of the five-hour meeting, some councilors suggested sending the bill to an ad hoc committee, while other councilors suggested skipping a decision entirely and putting the NDO to a public vote.
Council members also directed city staff to get the opinion of Montana's Republican Attorney General Tim Fox on whether Billings had the ability to create the ordinance. Four Montana cities have created non discrimination ordinances. Missoula's NDO is four years old.
Those suggestions angered supporters of the NDO, but were welcomed by opponents.
“Stop delaying. Your ad hoc committees and ballot measures are stall tactics,” said Tammy Mehlhaff, who supports the NDO. “Own this. You have the power to make a difference.”
Mehlhaff and other NDO supporters said the rights of the minority should not be up to a vote by the majority.
Among the opponents of the NDO, there were fears the ordinance went too far.
Mae Woo said the NDO imposed communist-style control that threatened the freedom of Billings residents.
"It is an agenda of tyrannical control of the people, communist style," Woo said. "Hitler's brown shirts have been replaced by orange shirts," referring to the orange shirts of NDO supporters.
Several women expressed concern about ordinance language covering restrooms, locker rooms and other places of public nudity.
The Billings NDO addresses restrooms, locker rooms and other places where people normally appear in the nude. In these areas, users may be required to use the facilities designated for their anatomical sex, regardless of their gender identity.
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Several female witnesses voiced concern about sharing bathrooms with people who considered themselves one gender, but were anatomically another.
There was also testimony from a witnesses who appears male, but has female sexual organs. It isn’t easy to go to the bathroom in a public place, the witness said. If he uses the women’s room, the occupants look at his bearded complexion. If he uses a men’s locker room the response is the same and he fears for his safety.
Marian Bradley, founder of NOW Montana, a woman’s rights organization, said the fear about being attacked in a public bathroom was bogus, a myth that had been churning for decades.
“Our genitals do not define who we are. Who we are is defined by how we live as women,” Bradley said, advocating for the NDO.
What’s bogus, said witnesses opposed to the ordinance, are anecdotes about discrimination toward people who are sexually different. A half dozen Billings residents, including councilman Shaun Brown, said they had gone years without being aware of discrimination in Billings.
“I've been in Billings 32 years and I haven’t heard about any of this discrimination until the last two months,” Brown said.
Brown also questioned ordinance language concerning obesity. A self-identified member of the obese community, he said he hadn’t been discriminated against and questioned the usefulness of the classification.
Other council members questioned whether the city was inviting a lawsuit by an obese person who lost a job that physically he or she couldn’t perform.
City staff said that where jobs had physical requirements that an obese person could not meet, the NDO wouldn’t apply.
The Billings ordinance would be the first in Montana to create a civil offense for discrimination with a fines up to $500 for repeat offenders. People who believe they have been discriminated against must first file a complaint with the Montana Human Rights Bureau.
City Administrator Tina Volek said the bureau chief has told City Attorney Brent Brooks that the bureau will investigate the complaint even though the state has yet to adopt an NDO.
If the bureau said the matter didn’t fall within its jurisdiction, the person who feels discriminated against can file a complaint with the Billings Police Department or Municipal Court, or file a civil proceeding — but not both.
“It is the intent of the city of Billings,” the proposed ordinance states, “that no person shall be denied his or her civil rights or be discriminated against based upon his or her sexual orientation, gender identity or expression, veteran’s status, political beliefs or obesity.”