Because there is currently no federal or state legislation that recognizes LGBTQ as a protected class, several cities throughout West Virginia have taken it upon themselves to implement such protections.
If Beckley passes an ordinance, slated for first reading Jan. 8, it will become the 13th city in West Virginia — a Bible belt state that voted overwhelmingly in favor of President Donald Trump in 2016 — to codify local legal protections for lesbian, gay, bisexual and transgender residents and those "questioning" their identity.
LGBTQ Beckleyans say they need the ordinance.
"We know people who have lost their job, people who have been harassed, followed, their property destroyed, their families threatened," Christian Baisden, a leader of a local LGBTQ group, told Council on Dec. 11. "We have had friends publicly attacked to the point they were beaten unconscious all because of their sexual orientation or because of their gender expression."
They said the ordinance is a request for protection — not a demand that those with religious convictions approve of their choices.
Beckley Human Rights Commission voted on Dec. 6 to amend city code to protect LGBTQ. At a meeting earlier this month, commission member Danielle Stewart, a transgender woman, presented a Human Rights Commission resolution asking Council to approve the amendment.
"Being a member of the LGBTQ community, I'm not necessarily looking for everybody to embrace me and say, 'Hallelujah!'" Stewart told Council in late November. "All we're looking for is the opportunity to be treated fairly."
Nationally, the number of those who identify as LGBTQ is rising to 10 million compared to 8.3 million in 2012, according to a 2016 Gallup poll.
Millennials are driving that increase, data shows.
Gallup reports a rise in the percentage of Americans who openly identify as LGBTQ, with a recent survey showing an overall increase from 3.5 percent in 2012 to 4.1 percent in 2016. The survey shows that while LGBT identification remained stable or dipped slightly among Generation X, baby boomers and traditionalists in the past four years, Millennials born between 1980 and 1998 were more likely to identify as LGBT.
A 2016 survey by the LGBTQ group GLAAD reported that one in five of Millennials surveyed had identified as LGBTQ.
"The bathroom thing"
Some who oppose the ordinance have said they are afraid it will give a peculiar protection to male sexual predators, enabling them to legally enter a women's restroom to attack females.
Charleston city attorney Paul Ellis said Wednesday that there have been no attacks reported in public bathrooms in the 14 years that a LGBTQ code has existed there.
"We have not had that happen here, and I am not really aware of that happening anywhere," he said. "On the bathroom thing, I guess we became the expert on this issue, because a couple years ago, I got a phone call from general counsel at a state agency, and they said, 'Look, we've got a complaint from someone who is transitioning, in relation to our bathrooms, and we don't know how to handle it.'"
Ellis said adding a locking unisex bathroom neatly solved the crisis.
Charleston first added "sexual orientation" to its lists of protected classes in 2004. In 2007, the Charleston Human Rights Commission added language defining whom the law protected. In 2012, when the Charleston city manager took away a $250,000 annual budget and proposed cutting the commission and instead allowing state and federal law to protect the rights of minorities and women, city attorney Paul Ellis and others told the city that state and federal code did not protect the LGBTQ population in Charleston. In response, the city attorneys and HRC members turned the commission into a volunteer committee so that discrimination against LGBTQ would continue to be illegal in city limits.
Ellis, who will be leaving office in early January, said that several pieces of state legislation over the years have aimed to supersede the Charleston ordinance and make all LGBTQ city ordinances in the state useless. Ellis said he has worked with the LGBTQ-rights group Fairness WV to fight those proposed laws.
He has also helped West Virginia Division of Health and Human Resources to add LGBTQ protections to the state housing code and has helped other West Virginia cities draft LGBTQ ordinances.
Ellis said only two lawsuits have been brought under the city protection for LGBTQ since 2004.
In one case, he said, the mere involvement of the Charleston Human Rights Commission led the landlord to resolve the matter with a renter.
In the second instance, a woman was offered a job as director of the Bob Burdette Center, a nonprofit and religiously affiliated child care center on Charleston's west side. According to Ellis, board members later saw the woman's social media posts, which suggested she was a lesbian, and rescinded the offer.
She sued in Kanawha County Circuit Court, with her pro-bono attorneys successfully arguing that while state code does not offer protection for LGBTQ employees, the court should recognize the policy protection that Charleston had codified in its human rights ordinance.
The judge recognized the policy the Charleston ordinance had set and ruled in favor of the worker. Her case proceeded to a jury trial, and the jury also found in her favor.
She was not awarded damages, however, because she had accepted a higher-paying position shortly after being denied employment at the child care center. The center and the plaintiff signed a mutual agreement not to appeal the lower court decision.
"(The ordinance) simply requires that people not discriminate," Ellis said.
"We haven't had any problems"
Lewisburg in Greenbrier County passed an LGBTQ ordinance in February 2016.
City and business leaders said earlier this month that they had not had sexual attacks occurring in public bathrooms, nor have they seen a rise in discrimination lawsuits.
Lewisburg town recorder Shannon Beatty said it wasn't clear if the ordinance has attracted new LGBTQ residents.
"I know that we have had at least two more gay couples move to Lewisburg, but I don't know if it is because of that," she said. "All I know is, we haven't had any problems, specifically.
"We haven't had anybody file any complaints, and we haven't had anybody say that anybody tried to do anything in the bathroom.
"The next election, we had a bunch of people running against us, but we beat them," she added.
Monica Miller, co-owner of Harmony Ridge Gallery and a board member of the local merchants' association, said Lewisburg tends to be an accepting town and that the LGBTQ ordinance simply codified the spirit of Lewisburg.
"It's always been welcoming of anyone," she said. "I feel like it's already kind of the core or the heart of the town to be that way."
She added the ordinance was necessary, however.
"Although it should be just a given, I feel with the world we live in, those things have to be put on the books, so they're protected, and they're there forever, no matter what happens in our world or our town or our country," she said. "There is a need to have it on the books, just so it is officially recognized."
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In addition to Charleston and Lewisburg, other cities which have enacted such an ordinance include Charles Town, Harper's Ferry, Huntington, Martinsburg, Morgantown, Shepardstown, Sutton, Thurmond and Wheeling. And in the November general election, citizens of Fairmont passed its nondiscrimination ordinance with nearly 58 percent of the vote, 3,384 to 2,465.
“I think it means that we want to be a welcoming, inviting community with the opportunity to help our youth and young people stay in the area,” D.D. Meighen, one of the proponents of the ordinance, told the Times West Virginian on election night. “I’m glad that the people saw the advantage of what it can do for us in terms of economic growth, in terms of neighborhood diversity and in terms of us coming closer together.”
Beckley Mayor Rob Rappold is a proponent of the Beckley ordinance.
He first suggested the idea of reintroducing the LGBTQ ordinance at a Common Council workshop in November.
A nearly identical proposal was shot down in Beckley in 2014, after a large number of evangelical church members and business owners had concerns that the ordinance would infringe on religious rights and could lead to increased discrimination lawsuits.
Since then, two U.S. Supreme Court cases have forced the issues of civil rights protections for religion and marriage to the forefront.
In 2015, the Court legalized same-sex marriage. In 2018, the Court ruled in favor of Jack Phillips, a Denver, Colo., cake decorator and baker who served gay customers but declined to decorate a cake for a gay wedding. Phillips said that using his artistic skills to decorate a gay wedding cake would violate his Christian belief that marriage is between a woman and a man.
Citing a Denver ordinance similar to the one proposed in Beckley, lower courts found that Phillips had violated the civil rights of the couple. The Supreme Court, however, ruled that the Colorado Civil Rights Commission had shown hostility to Phillips' religion when examining his case and had failed to adequately recognize his First Amendment rights. The Court also noted that LGBTQ Americans should not be treated like "second-class citizens."
Robert Dunlap – a member of the Human Rights Commission, a local attorney and LGBTQ advocate – said the proposed amendment will not infringe on federal First Amendment rights.
"Protections for churches already exist in the proposed ordinance by including religion as a protected class and with the First Amendment of the Constitution and the corresponding protections for religion in the West Virginia Constitution," Dunlap said.
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As Beckley Common Council prepares to vote Jan. 8 on whether to amend the city human rights code to include LGBTQ residents as a protected class, the first reading of the measure is expected to pass the seven-member body.
Councilwoman Ann Worley (Ward II) said Thursday that she will likely vote in favor of the ordinance. Worley had been undecided earlier this month, but her vote is now anticipated to be the fourth "yes" vote.
"Based on many texts, phone calls, conversations, emails, etc., from constituents and public over the past week, I am leaning toward a 'yes' vote," Worley said. "This is a social issue, in my opinion."
Ward I Councilman Tom Sopher and at-large Council members Sherrie Hunter and Tim Berry had already pledged support.
The three remaining on Council — Frank Williams (Ward III), Kevin Price (Ward IV) and Janine Bullock (Ward V) — said Wednesday they are reserving judgment until they see the proposed amendment.
Williams, who chairs the Beckley Human Rights Commission, has expressed some concerns with the ordinance. He has said he does not want LGBTQ residents to be harassed or face discrimination but that he also wants to uphold the rights of local pastors who teach that marriage is between a man and a woman.
The ordinance will be presented for first reading on Jan. 8 at the Beckley-Raleigh County Convention Center, Councilman Berry said.