Director, Commonwealth Policy Center

On December 10, hundreds of Somerset residents attended the city council meeting to register their opposition to a human rights ordinance that would  include sexual orientation and gender identity (SOGI) as a civil right. The idea behind the proposal is to protect members of the LGBT community from unjust discrimination.

Somerset wasn't the first city to consider an ordinance change in the past year. Park Hills in Northern Kentucky considered amending their laws and Paducah enacted a SOGI law, albeit with opposition that resulted in electoral results that could lead to rescinding the ordinance. 

Advocates of the ordinance make it sound like Somerset would be joining the mainstream if it enacts an ordinance. As it is, 98 percent of Kentucky's 418 cities don't have such laws on the books. In other words, only 10 cities have SOGI ordinances.Nor has the case been sufficiently made that a SOGI ordinance is necessary.  It is my understanding that there are no documented cases of sexual orientation or gender identity discrimination in Somerset?  So why the need?

We do know that SOGI ordinances have been weaponized to punish business owners who refuse to materially participate through their products or services in gay weddings. New Mexico's SOGI law was used to fine a photographer over $6600. New York's SOGI law was used to levy a $13,000 fine on an agri-tourism venue.  Oregon's SOGI law was used to issue a $135,000 fine on a husband and wife who ran a bakery. And Washington's SOGI law was used to punish a florist and possibly drain her business and life savings. It was also used to protect the right of a transgender individual to used a women's locker room at Evergreen College.

The U.S. Supreme Court ruled earlier this year that the Colorado Civil Rights Commission wrongly used a state SOGI law to compel Masterpiece Cake Shop owner Jack Phillips to produce a message that violated his civil right to practice his religious beliefs. A similar challenge to Lexington's SOGI law is now in front of the Kentucky Supreme Court.

Lexington printer, Blaine Adamson refused to print T-shirts for a gay pride event in 2012  because it promoted a message contrary to his religious beliefs. In light of this court case, why would the Somerset City Council push ahead with a controversial ordinance when the issue is still being litigated?

One of the major problems often overlooked with SOGI ordinances is that they make a minefield of a company's hiring and firing process. For example, if an openly homosexual or transgender employee is fired for poor job performance, they can simply claim “sexual orientation discrimination,” bring it before the Human Rights Commission and tie up an employers valuable time and resources on scurrilous claims. This is not only unfair, its problematic for employers who'd rather avoid deeply personal issues unrelated to their work performance.

Private sexual behavior becomes an issue by forcing employers to somehow consider a prospective employee’s sexuality. Consider that an employer cannot be sure of every applicant's sexual orientation or gender identity unless they specifically ask. And why should they ask, unless the law makes it an issue? It's a catch 22 and could be entirely avoided by keeping an individual's private sex life out of the interview process.

There will be claims that opposition to the SOGI ordinance will hurt the LGBT community. Truth is, one can be for an individual and respect their humanity without embracing and agreeing with all their personal choices. SOGI laws unfortunately allow no room for such distinctions.  If Somerset City Councilors wish to avoid dividing the community, they should reject this proposal.