By CARTER WALKER
Times West Virginian
FAIRMONT, W.Va. — Soon after the Sept. 12 Fairmont City Council meeting, a collection of petitions began circulating around the city and on social media.
Eight petitions are making the rounds.
One is to have the city council reconsider the human rights commission ordinance, and one is for a recall election for each of the seven council members who voted in favor.
Posts say that the ordiance will allow men into women’s bathrooms, and that it is a “dangerous ordinance” that will make the community “less safe.”
But there are those who disagree with that point of view.
The ordinance, number 482, repealed the old human rights commission and instituted it again with updated language.
The previous ordinance gave the commission authority to hold hearings and serve as a quasi-judicial body, which can review cases and potentially issue fines.
This new ordinance states that the commission will serve primarily in an educational capacity, informing groups of equal-rights laws as well as making recommendations to the city council.
At the Sept. 12 meeting, a line of speakers led out the door, all of whom wanted to provide their input to the council on the ordnance. The majority, 51-34, spoke against the ordinance.
Much of the controversy surrounding the ordinance was because the updated ordinance includes two new protected classes, gender identity and sexual orientation, under a statement-of-policy section.
“It is the public policy of the city to safeguard the right and opportunity of all persons to be free from all forms of discrimination, whether as a result of race, religion, color, national origin, ancestry, sex, age, sexual orientation, gender identity, blindness or handicap, and to provide for an inclusive community for all residents, businesses and visitors,” the ordinance reads.
“The denial of these rights to properly qualified persons by reason of race, religion, color, national origin, ancestry, sex, sexual orientation, gender identity, age, blindness or handicap is contrary to the principles of freedom and equality of opportunity and is destructive to a free and democratic society.”
Keep Fairmont Safe takes the position that adding those two groups, sexual orientation and gender identity, adds to the protected classes under the Civil Rights Act of 1964 and affords those groups protection in public accommodations, including bathrooms.
That protection in public accommodations is what they say will give men the ability to enter women’s private areas.
“The local ordinance only has authority via a 1964 Supreme Court decision that defines places of public accommodation which does include bathrooms, showers and other spaces where people may be disrobed,” Keep Fairmont Safe representative Karen Ford said via email.
“So, the actual ordinance doesn’t need to include or repeat every word of that ruling for it to access the ruling’s authority to include public accommodations in Fairmont like bathrooms, etc. This is commonly accepted Supreme Court precedent. Therefore, the ordinance does indeed impact local bathrooms, showers, dressing areas at work and intimate spaces in Fairmont.”
Ford was originally one of five people, along with Susan Starr, Benjamin Heffmaster, Kenneth Wright and Shelly Wyckeff, who submitted an affidavit for the creation of the petition to the city government. Her affidavit was invalid however, as she does not live in the corporate limits of Fairmont.
Ford declined to be interviewed for this story, but did forward statement from another representative, Kandice Nuzum.
Nuzum replaced Ford as the fifth person to file an affidavit.
“We see many problems with the ordinance,” Nuzum said. “One is because they added ‘sexual orientation’ and ‘gender identity’ as a protected special class, and not because we don’t think they should be protected, but because of what we know what is happening across the nation because of these city ordinances to those who believe in the traditional biblical marriage between a man and a woman who voice and live their faith.”
Nuzum similarly went on to cite the Civil Rights Act as the source of the ordinance’s authority. She also declined to be interviewed.
“The message that the group is spreading is, I think, a false (message),” City Manager Robin Gomez said. “They’re misstating and misleading people to sign it.”
Gomez said the ordinance has nothing to do with bathrooms or religious expression, and was simply intended to reinstitute the human rights commission in an educational capacity without its former authoritative powers.
“It’s not as it was 50 years ago, and there are people who just don’t like what is happening,” Gomez said.
John Taylor, a professor of Law at West Virginia University with a Ph.D. from Stanford University and his Juris Doctorate from the University of Northern California’s School of Law, has published articles discussing civil rights issues.
He said via email that it is still unsettled whether federal laws that dictate sex discrimination give transgender people the right to use the bathroom corresponding to their gender identities.
“I can see the argument that if Congress today decided to amend the Civil Rights Act of 1964 to include ‘gender identity’ as a protected class while leaving the rest of the statute unchanged, there could be no gender-identity discrimination in ‘public accommodations,’ and that would in turn mean that transgender people would have a right to use the bathrooms of their gender identity where those bathrooms are located inside public accommodations,” Taylor said. “Of course, Congress hasn’t done that and won’t be doing it without a lot of seats turning over.”
After reviewing the ordinance and the opposition’s statements, Taylor said that their argument would make sense if the ordinance actually prohibited discrimination on the basis of gender identity in public accommodations, but that specific language is not in the document.
“Given what the new Fairmont ordinance actually says the argument goes nowhere,” Taylor said.
He said that the old ordinance may have had some enforcement mechanisms that extended to public accommodations, but those are now gone in the new version.
“There is nothing in the new law that forces or could force anyone to allow transgender people to use the bathrooms corresponding to their gender identities,” Taylor said. “If you are opposed to rights for transgender people, I understand why you would dislike the new ordinance because it is an affirmation of equality for such people. But the ordinance doesn’t give anyone any more rights with respect to bathrooms than they have now.”
The petition to take the ordinance back to the council for reconsideration will need signatures from 15 percent of the registered voters from 2016 who live in the city limits, approximately 1,965, and must be done with in 30 days of the Sept. 12 vote.
If the petition is successful, the council can then agree to reconsider it, repeal it outright or do nothing.
Keep Fairmont Safe has declined to indicate how many signatures they have so far received. As of Sept. 27, their Facebook page had 325 likes.
The seven petitions for a recall vote on the council members who voted for the ordinance will need 20 percent of the registered voters from 2016 who live in the city limits, approximately 2700. There is no time limit on this petition.
Mayor Tom Mainella is confident that the council made the right decision and stands behind the ordinance.
“I know for a fact that they are misrepresenting the facts when they take their petition around,” Mainella said. “There’s been misinformation all along; why should it stop now? The whole dispute is based on misinformation.”
Email Carter Walker at [email protected] and follow him on Twitter at @carterw284.
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