Preemption Update: Discrimination & Sanctuary Cities

Two months into the 2017 state legislative sessions, local LGBTQ nondiscrimination ordinances and sanctuary cities have emerged as two of the leading targets of state preemption.

As in the past, preemption proposals have been introduced in both states with existing local ordinances or policies, and those with no local LGBTQ protections or communities with sanctuary status.

Discrimination

In the case of LGBTQ discrimination, preemptive bills have taken three forms:

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Express preemption of local nondiscrimination ordinances. State laws with preemption clauses that invalidate local ordinances prohibiting discrimination against LGBTQ people in employment, housing

and public accommodations. While targeted at LGBTQ protections, these bills could also preempt protections for other groups that are not protected under state civil rights statutes. Currently, Arkansas has a law expressly preempting any local ordinance or other policy “that creates a protected classification or prohibits discrimination on a basis not contained in state law,” and Tennessee has a similar law.

“Bathroom bills,” which prohibit transgender people from using public restrooms that correlate with their gender identity, and would preempt local nondiscrimination ordinances. These bills preempt local policies that extend the right to use bathrooms and changing facilities that match the gender identity of transgender persons. Some bills cover all public facilities while others specifically target public schools. Currently, North Carolina has a bathroom bill as well as express preemption of local nondiscrimination laws.

“Religious freedom” bills (also called “religious freedom restoration acts” or RFRAs). Mississippi adopted legislation in 2016 that grants special rights to citizens who hold one of three “sincerely held religious beliefs” or moral convictions reflecting disapproval of LGBTQ and unmarried persons. A federal district court found the law to be unconstitutional and the case is on appeal to the 5th Circuit. If the law were ultimately upheld, inconsistent local ordinances protecting LGBTQ persons from discrimination would be preempted.

Express preemption bills have been filed in the following states:

  • Oklahoma: SB 694 – Passed committee, House; 2/20/2017
  • Texas: SB 92 – In committee, Senate; 1/24/2017

“Bathroom bills” have been filed in the following states:

  • Alabama: SB 1 – In committee, Senate, 2/7/2017
  • Illinois: HB0664 – In committee, House; 2/16/2017
  • Kansas: HB 2171 – In committee, House; 1/26/2017
  • Kentucky: HB 106 – In committee, House, but is not expected to move forward; 2/7/2017
  • Kentucky: HB 141 – In committee, House, but is not expected to move forward; 2/7/2017
  • Minnesota: HF 41 – In committee, House; 1/12/2017
  • Missouri: SB 98 – In committee, Senate; 2/21/2017
  • Missouri: HB 202 – In committee, House; 1/6/2017
  • Missouri: HB 745 – In committee, Senate; 1/25/2017
  • New York: A05422 – In committee, Assembly; 2/8/2017
  • South Dakota: SB 115Withdrawn by sponsor; 1/31/2017
  • South Carolina: H 3012 – In committee, House: 1/10/2017
  • Tennessee: HB0888 – Withdrawn by sponsor, may be reintroduced later in 2017 session; 3/7/2017
  • Texas: SB 6 – Public held in Senate committee on 3/7/2017
  • Texas: HB 1362 – In committee, House; 2/27/2017
  • Virginia: HB 1612 – Tabled, unlikely to move forward; 2/8/2017
  • Washington: HB 1011 – In committee, House; 1/17/2017
  • Wyoming: HB0135Withdrawn by sponsors; 1/27/2017
  • Wyoming: HB0244 – Did not consider for introduction; 2/3/2017

Religious freedom bills have been filed in the following states:

  • Georgia: SB 233 – In committee, Senate; 2/22/2017
  • Oklahoma: SB 197 – Passed committee, Senate; 2/21/2017
  • Oklahoma: SB 530 – In committee, Senate; 2/6/2017
  • Oklahoma: HB 1507 – In committee, House; 2/7/2017
  • Virginia: HB 2025 – Passed House & Senate, governor action deadline of March 27, 2017
  • Washington: HB 1178 – In committee, House; 1/12/2017
  • Washington: HB 1217 – In committee, House; 1/13/2017

Sanctuary cities

In the case of sanctuary cities, preemptive bills have been introduced in nine states. “Sanctuary city” is a broad term applied to cities and counties (and in some cases, such as California and Colorado, states) that decline to partner with federal officials to enforce federal immigration laws. As a practical matter, the term means that local law enforcement agencies won’t inquire into immigration status during routine police work and decline to detain people on behalf of federal law enforcement agencies.

Sanctuary city preemption bills have been filed in the following state legislatures:

  • Florida: SB 786 – In committee, Senate; 2/23/2017
  • Florida: HB 697 – In committee, House; 2/15/2017
  • Idaho: HB 76 – In committee, House; 2/1/2017
  • Iowa: HF 67 – Passed Committee, House; 2/8/2017
  • Mississippi: SB 2710 – Passed Committee, Senate; 2/23/2017
  • North Carolina: SB 145 – In committee, Senate; 3/1/2017
  • Pennsylvania: SB 10 – Passed Senate; 2/20/2017
  • Tennessee: SB 155 – In committee, Senate; 3/1/2017
  • Texas: SB 4 – Passed Senate; 2/9/2017
  • Virginia: HB 2000 – Passed House and Senate; 3/7/2017

We also anticipate that a sanctuary cities preemption bill will be filed in Ohio.

Please let us know if we missed a preemptive proposal in your state. Information from Grassroots Change’s network is critical to our work of monitoring state preemption across issues. Thank you!