De Pere Transgender Anti-Discrimination Ordinance Faces Legal Challenge

The De Pere City Council passed an ordinance recently banning certain forms of discrimination on transgender individuals. But critics of the ordinance say that while the rights of city residents should be protected, the loose language of the ordinance could lead to legal challenges over free speech and freedom of religious expression. Q90FM Christian Talk show host and general manager Mike LeMay reached out to Media Trackers concerning the ordinance and the ongoing legal challenge surrounding it.

In the ordinance, gender identity was added to a previous list of classes of individuals that are protected against discrimination in terms of employment, housing, and public accommodations. In terms of discrimination, the ordinance defines it as:

Any act, policy, advertisement or practice which has the effect of subjecting any person to differential treatment as a result of that person’s actual or perceived age, color, family status, gender identity and/or gender expression, marital status, national origin/ancestry, military service or veteran status, race, religion, color, persons with disability, sex, sexual orientation, source of lawful income or victims of domestic violence, sexual assault or stalking.

The De Pere city council voted on the ordinance to include gender identity 4-4 with Mayor Michael Walsh breaking the tie in favor of its passage in both the Nov 7th and follow up Nov 21st meeting. At both the meetings, citizens expressed some of their concerns with the ordinance, including situations regarding bathrooms and changing rooms, and also regarding religious organizations’ freedom of expression. LeMay expressed these concerns to Media Trackers in an email:

“The concern was not necessarily about “transgender” individuals, but that the bill was so sloppily written that sexual predators posing as “gender confused” individuals would have unfettered and legal access to these facilities, posing a danger to the public, particularly younger children.”

He continued: “There was no restriction or accommodation for religious organizations, churches or public or private schools in the legislation.  This is viewed as a blatant disregard of the freedom of speech and religious expression in the Federal and State Constitutions governing the City of DePere.”

It’s important to note that these concerns do not stem from any thought that transgender individuals should not be included in the classes of people who should be protected from discrimination, rather that this ordinance may lead to legal trouble in the realm of freedom of religious expression, since denying services due to certain beliefs would be classified as discrimination. In a letter from LeMay’s attorney, Michael D. Dean, to the mayor and city council, he discussed how this would be problematic:

“If the ordinance is enacted, the facilities of a church or synagogue providing such benefits would be regulated as a “place of public accommodation” providing “goods, services, accommodation and entertainment to the public,” and the City of De Pere will expose to crippling lawsuits both those organizations and the vital charity work they provide. While such organizations typically provide charitable benefits without regard to any class criteria like those designated by the ordinance, they can and must reserve the right to decline any use of their facilities which violates the faith by which they provide those benefits in the first place.”

“The ordinance scope of regulation therefore impinges directly on constitutionally protected conduct of faith-based ministries and businesses.”

While the ordinance was voted 5-4 in favor of the bill, LeMay reported that Lakeshore Communications Inc. and five DePere Churches are working with Pacific Justice Institute and Attorney Michael Dean to pursue a legal challenge.

“In summary, we believe this legislation was a verdict in search of evidence, and a cave to political correctness that could endanger not only churches and religious organizations, but also businesses and the citizens of DePere.  We stand by our assessment after legal research that this ordinance is blatantly unconstitutional in failing to protect freedom of speech and religious protection from violation by government.”