A former mayor and an outgoing City Council member are voicing their concerns about Brookhaven including gender identity in a nondiscrimination ordinance that is expected to be voted on in January. They also raised questions about how a person’s religious beliefs may be violated by the ordinance.

Former Brookhaven mayor J. Max Davis

“It’s not so much the ‘LGB’ [lesbian, bisexual, gay] portion of the ordinance that might concern me as a lawyer or a citizen; it’s gender identity,” former mayor J. Max Davis said during a public hearing on the ordinance at the Dec. 10 council meeting. Outgoing Councilmember Bates Mattison also shared that concern.

Speaking in favor of the ordinance were Councilmember-elect Madeleine Simmons, who will replace Mattison on the council in January; state Rep. Matthew Wilson; and several residents. Also at the meeting was Jeff Graham, executive director of Georgia Equality, the state’s largest LGBTQ organization. Graham said in an email the issues raised by Davis and Mattison have been answered in other court cases.

“It’s also important to note that religion is also a protected category, so the concerns that this could be used against people of faith are misplaced,” Graham said.

The ordinance would ban private businesses in the city from discriminating against people based on their race, color, religion, national origin, ancestry, age, disability, marital status, familial status or veteran/military status, all of which are also protected by federal law but not by state law. The ordinance also bans discrimination against people based on their sexual orientation and gender identity, who are currently not protected by state or federal law.

Davis, the city’s first mayor, and Mattison, who decided not to seek reelection this year, questioned the LGBTQ nondiscrimination ordinance before next month’s planned vote, suggesting a proclamation or a resolution would be a better option than an ordinance. An ordinance gives the city enforcement powers and a resolution does not.

Davis said protections being provided to people based on “immutable” characteristics should not include gender identity. Immutable characteristics generally means those that can’t be changed. The ordinance as drafted bans discrimination based on “actual or perceived” classes of people.

“[Gender identity] … in the last few years has come to mean something very fluid and changeable,” Davis said. “By its nature, when someone changes their sex, that is changing.”

Mattison also had qualms about including gender identity in the nondiscrimination ordinance.

“As an example, let’s say you’ve got a business operating in Brookhaven and … someone who chooses to use the female bathroom but was originally a male … and the business owner says, ‘No, you can’t use that restroom, you have to use the one that [matches] your license’ – how do you determine if that is discrimination or not?” Mattison asked City Attorney Chris Balch.

Balch explained that the words “actual or perceived” wording included in the draft ordinance allows a person who presents as a woman in public to use the women’s restroom.

“If they are presenting as a woman and are perceived as a woman, they should be treated as a woman and are entitled to use the restroom for women,” Balch said.

Davis said the word “perceived” when it comes to gender identity is problematic.

“I don’t know if perceived … is proper legal language,” he said. “Perceived is subjective.”

He also questioned the draft nondiscrimination ordinance exempting religious organizations but not religious beliefs, saying doing so “runs afoul of the Constitution.” Private, nonprofit membership clubs such as the Capital City Club and Peachtree Golf Club also would be exempted from the nondiscrimination ordinance.

Davis asked the council to issue a proclamation rather than pass an ordinance. He said the LGBTQ nondiscrimination ordinances that have passed in several neighboring cities including Chamblee, Doraville and Dunwoody over the past year are backlash against the General Assembly’s years-long attempts to pass a controversial state version of the federal Religious Freedom Restoration Act (RFRA), also called a “religious freedom” bill. Opponents to a Georgia RFRA say the law would allow anti-gay businesses to be able to legally discriminate against LGBTQ people.

“If you write an ordinance, make sure it is enforceable,” Davis told the council. “Make sure it protects everyone equally. And I hope we don’t do RFRA in reverse. RFRA, as we all know, has caused a lot of division and problems in the state.”

Brookhaven’s ordinance is being backed by Councilmember Linley Jones and Simmons. Mayor John Ernst has also said he would support it.

Simmons spoke during public comment and said the ordinance not only protects LGBTQ people, but others who face discrimination as well. At a recent town hall on the ordinance, she noted that residents shared how they had been discriminated against based on race and disability.

“Unfortunately, we have heard of members of our community experiencing this kind of discrimination and it is something we need to address,” Simmons said.

“How incredible is it for everyone in this room … to say they are part of a movement that sets and example for our youth and sends a message to the residents of our community and the state that Brookhaven is not only a ‘Welcoming City’ but one that embraces our differences and does not allow for hate and discrimination.”

The ordinance as drafted outlines a process for a person who believes they have been discriminated against to file a complaint with the city. A 30-day investigation by the city attorney is then started with recommended private mediation. If the parties cannot resolve their issue with mediation, a hearing is held before a city-appointed officer.

A business found to violate the ordinance would face a $1,000 fine for the first offense and a $2,000 fine for more violations. A business with repeated violations could face losing its business license with the city. The right to appeal to DeKalb Superior Court is also part of the ordinance.

In a PowerPoint presentation to the council, Balch explained he was directed by Jones to draft the ordinance because, as she has said, “the federal government and our state government haven’t done enough.”

“The purpose of this ordinance … is to fill in some of those gaps,” Balch said.

“We worked very hard in the construction of the ordinance to limit lawyers’ involvement … and to fill in the gaps in state statutes and federal law … with the least impact on the city’s fiscal responsibility,” he said.

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