Fayetteville has been a hotbed of LGBT rights advocacy, but on February 23, the Arkansas Supreme Court, reversing a ruling by Washington County Circuit Court Judge Doug Martin, found that the city and its voters had violated state law by adding “sexual orientation” and “gender identity” to their antidiscrimination ordinance. Protect Fayetteville & State of Arkansas v. City of Fayetteville, 2017 Ark. 49, 2017 WL 715056, 2017 Ark. LEXIS 51 (not reported in S.W.3d). Justice Josephine Linker Hart wrote the opinion for the unanimous court.
Responding to earlier attempts to enact LGBT rights protections in Fayetteville, the Arkansas legislature passed Act 137 in 2015. Titled the Intrastate Commerce Improvement Act, Ark. Code Ann. Sec. 14-1-401 to 403, the measure was intended, according to its purpose section, “to improve intrastate commerce by ensuring that businesses, organizations, and employers doing business in the state are subject to uniform nondiscrimination laws and obligations, regardless of the counties, municipalities, or other political subdivisions in which the businesses, organizations, and employers are located or engage in business or commercial activities.” To that end, the measure bars local governments from adopting or enforcing “an ordinance, resolution, rule, or policy that creates a protected classification or prohibits discrimination on a basis not contained in state law.” The Act recognizes one exception: local governments are left free to legislate on their own employment policies. Thus, a city can adopt an ordinance banning discrimination in its own workforce on grounds “not contained in state law.”