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The Rise of Anti-Anti-Discrimination Laws

By Christopher Coble, Esq. | Last updated on

Federal laws make it illegal to discriminate based on race, age, sex, nationality, disability, or religion when it comes to employment, housing, voting rights, education, and access to public facilities. And some states have extended these protections to prohibit discrimination based on sexual orientation or gender identity or expression.

Some states, on the other hand, haven't just declined to enact statutes against LGBT discrimination, but have passed laws limiting the authority of cities located within their borders to do so. Here's a look at these anti-anti-discrimination laws.

Anti-Discrimination Exceptions

As the ACLU notes, there are two main types of anti-LGBT legislation:

  1. Religious Exemption Laws: Bills that allow religion to be used to discriminate against gay and transgender people; and
  2. Laws Pre-Empting Local Protections: State bills prevent cities and other local government entities from passing nondiscrimination protections that exceed protections offered at the state level.

Several states have enacted some form of religious exemption law in the last few years. These can range from standard religious freedom restoration acts, which allow businesses to refuse service to gay, lesbian, and transgender customers under the guise of religious freedom, to adoption and foster care laws that allow agencies to refuse adoption services based on sincerely held religious beliefs.

State and Local Laws

State laws pre-empting local LGBT protections are a little more rare, but that might be changing. Although North Carolina's notorious "Bathroom Bill" might've gotten more national attention, Arkansas was the first to pass such a law in 2015. Senate Bill 202 made it illegal for a "county, municipality, or other political subdivision of the state [to] adopt or enforce an ordinance, resolution, rule, or policy that creates a protected classification or prohibits discrimination on a basis not contained in state law." And the Arkansas statute has already been used to strike down local anti-discrimination laws.

And it looks like Texas will be next. House Bill 2899 reads a lot like Arkansas' statute:

(a) A political subdivision may not adopt an order, ordinance, or other measure to:
(1) protect a class of persons from discrimination; or
(2) reduce or expand a class of persons protected under state law from discrimination.
(b) An order, ordinance, or other measure that is adopted by
a political subdivision before the date this section becomes law
and that violates Subsection (a) is null and void.

Federal law sets the floor for discrimination protection, but states, and cities up to this point, have been allowed to extend protections further. And the battle over whether states may in turn limit the power of their cities to provide additional legal protection against discrimination has yet to reach the Supreme Court.

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