LGBT preemption conflicts between state and local governments

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Last updated: May 5, 2021

Ballotpedia covers preemption conflicts between state and local governments in several policy areas. Preemption occurs when law at a higher level of government is used to overrule authority at a lower level. This page summarizes preemption conflicts over LGBT policy. To learn more about other preemption conflicts, click here.

Some preemption conflicts have centered on equal rights and public accommodations for the LGBT community. LGBT activists have advocated for local ordinances and state laws that prohibit discrimination based on sexual orientation and gender identity. Opponents of such requirements argue that they infringe on the exercise of religious freedom.

School districts, cities, and state governments have also disagreed about providing public accommodations for transgender people. Ballotpedia's coverage of the debate about transgender bathroom access laws is available here.

Email [email protected] to notify us of updates or new LGBT preemption stories.

LGBT preemption conflicts overview
Year	State	Summary
2017	Arkansas	A Fayetteville ordinance barring discrimination on the basis of sexual orientation or gender identity was struck down by the Arkansas Supreme Court on the grounds that it violated a state law prohibiting local government from expanding protected classes.
2017	Texas	The Texas State Legislature did not pass a proposed bill that would have prohibited local ordinances requiring access to bathrooms on the basis of gender identity.
2016	North Carolina	In response to a Charlotte ordinance requiring access to bathrooms on the basis of gender identity and prohibiting businesses from discriminating against LGBT customers, the North Carolina State Legislature passed a bill prohibiting localities from enacting such ordinances. The legislature repealed the bill a year later.

2017

Arkansas: State supreme court overturns Fayetteville's civil rights ordinance

The Arkansas Supreme Court struck down Ordinance 5871, a 2015 Fayetteville ordinance barring discrimination on the basis of sexual orientation or gender identity, on February 23, 2017. The court ruled that the ordinance violated Arkansas Act 137, which prohibits local governments from expanding protected classes beyond the groups specified in state law. The court said:

“	In essence, Ordinance 5871 is a municipal decision to expand the provisions of the Arkansas Civil Rights Act to include persons of a particular sexual orientation and gender identity. This violated the plain wording of Act 137 by extending discrimination laws in the City of Fayetteville to include two classifications not previously included under state law. This necessarily creates a nonuniform nondiscrimination law and the obligation in the City of Fayetteville that does not exist under state law.	”
—Arkansas Supreme Court (2017)

The state supreme court's decision overturned a March 2016 ruling by Washington County Circuit Court Judge Doug Martin upholding the ordinance. Martin found that, although gender identity and sexual orientation were not covered by the state's civil rights codes, they were protected elsewhere in state law. He said:

“	The language of this first prong of Act 137 is plain and unambiguous and the court must construe it just as it reads, giving the language used its plain meaning. Act 137 does not state that Arkansas's municipalities are prohibited from creating a protected classification on a basis on contained in the ACRA. Rather, Act 137 states that Arkansas prohibits its municipalities from creating a protected classification 'on a basis not contained in state law.' Ark Code Ann. 14-1-403(a). Clearly, the classifications of gender identity and sexual orientation were classifications of persons protected on bases contained in state law prior to the enactment of Ordinance 5781. As such, Ordinance 5781 does not create a protected classification on a basis not contained in state law and, therefore, the ordinance does not violate the plain meaning of the language used in the first prong of Act 137.	”
—Doug Martin (2016

Texas: State Senate bill prohibiting local bathroom access laws not passed in special session

The Texas State Legislature did not pass SB 6, a bill that would have prohibited local ordinances requiring access to bathrooms on the basis of gender identity, in its 2017 special session. The state Senate approved the bill in March 2017, but the state House failed to take it up before the session ended on August 15, 2017. According to Sandhya Somashekhar of The Washington Post, Gov. Greg Abbott (R) had called the special session partly to enact the bill.

SB 6, which would have preempted part or all of local ordinances enacted by Austin, Dallas, Fort Worth, Plano, Rockwall, and San Antonio, was introduced by state Sen. Lois Kolkhorst (R) in January 2017. Lt. Gov. Dan Patrick (R), who supported the bill, said:

“	The people of Texas elected us to stand up for common decency, common sense and public safety. This legislation codifies what has been common practice in Texas and everywhere else forever — that men and women should use separate, designated bathrooms. It is supported by an overwhelming majority of Texans including both Democrats and Republicans, Hispanics, African-Americans and Anglos, men and women. SB 6 also ensures that businesses have the freedom to determine their own bathroom policies and that no public school can institute a bathroom policy that allows boys to go in girls restrooms, showers and locker rooms and girls to go in boys restrooms, showers and locker rooms.	”
—Dan Patrick (2017)

The bill drew criticism from members of Keep Texas Open for Business, a group associated with the Texas Association of Business. Companies such as American Airlines, Dow Chemical, and Google joined city chambers of commerce in signing a March 2017 letter to state leaders. The letter said, in part:

“	DISCRIMINATORY LEGISLATION THREATENS OUR ECONOMY. By passing SB 6 (the so-called 'bathroom bill') and other discriminatory legislation, Texas could lose billions of dollars in GDP, a critical loss of revenue that would profoundly threaten the state’s ability to fund education, transportation and other essential services. And thousands of jobs could be lost, according to the Texas Association of Business’ economic impact study. DISCRIMINATORY LEGISLATION THREATENS TEXAS' TRAVEL AND TOURISM INDUSTRY. Texas receives $68.7 billion in travel spending, which generates $6.2 billion in state and local taxes. Over 1 million jobs are supported by travel, 648,000 direct and 488,000 indirect. This vibrant industry, the second largest in our state, would suffer declines similar to those experienced by other states if Texas loses its reputation as a welcoming destination for all visitors. DISCRIMINATORY LEGISLATION ALSO CREATES COSTLY OPERATIONAL AND LEGAL HEADACHES. When proposed legislation creates confusion about whom an employee must serve and whom that employee can turn away, it creates operational chaos—and legal expense—for all Texas businesses. We are in business to serve everyone, and to employ talented people from all walks of life. We need Texas to reflect that commitment to inclusion. Additionally, DISCRIMINATORY LEGISLATION NEGATIVELY IMPACTS OUR ABILITY TO RECRUIT TOP TALENT, especially among Millennials, who overwhelmingly support non-discrimination protections and seek to live in states that reject the diversity and inclusion they value. We are in a battle for globally competitive talent, and our ability to successfully recruit and retain our future workforce of Millennial talent is critical to our long-term economic prosperity.	”
—Keep Texas Open for Business (2017)

2016

North Carolina: State legislature passes law invalidating Charlotte's LGBT ordinance

The North Carolina State Legislature held a special session in March 2016 to address a Charlotte ordinance requiring access to bathrooms on the basis of gender identity and prohibiting businesses from discriminating against LGBT customers. The legislature passed a bill during the special session, HB 2, that prohibited localities from enacting nondiscrimination ordinances or requiring bathroom access on the basis of gender identity.

The Charlotte Observer's Michael Gordon, Mark S. Price, and Katie Peralta reported that HB 2 prompted the online payment company PayPal to cancel a planned expansion in Charlotte, Braeburn Pharmaceuticals to reconsider a research and manufacturing facility in Durham, the National Basketball Association to move its 2017 All-Star Game from Charlotte, the National Collegiate Athletic Association to move seven 2016-2017 championships from the state, the Atlantic Coast Conference to move its 2016 football championship from Charlotte, and multiple musical acts to cancel shows in the state. They also reported that at least five lawsuits were filed for or against the bill. A coalition of groups, including the American Civil Liberties Union and Equality North Carolina, filed suit against the law, as did the U.S. Department of Justice. Then-Gov. Pat McCrory (R), who signed HB 2, Senate President Pro Tem Phil Berger (R), and Assembly Speaker Tim Moore (R) each filed suits supporting the bill.

On March 30, 2017, Gov. Roy Cooper (D) signed a bill, HB 142, that repealed HB 2 but imposed a three-year moratorium on local nondiscrimination ordinances and prohibited ordinances related to bathroom access. Supporters of HB 142 said the moratorium was necessary to allow time for pending federal transgender rights lawsuits to be settled. Opponents argued that Cooper should have pushed for full repeal of HB 2, without the moratorium and ban. At a news conference about HB 142, Cooper said, "The Republican majority leadership [of the state legislature] had complete control on what went to the floor and what didn't, so they had to be the final arbiters on what was going to go on the floor."

HB 142 expired on December 1, 2020. As of January 25, 2021, Carrboro, Chapel Hill, Durham, Greensboro, Hillsborough, and Orange Counties passed local anti-discrimination ordinances. All six of the ordinances included gender identity and sexual orientation as a protected class.

See also

Local Politics	2021 Election Analysis	Preemption conflicts
Municipal government Local courts School boards Local ballot measures Local recalls	Municipal elections, 2021 Local court elections, 2021 School board elections, 2021 Local ballot measure elections, 2021 Political recall efforts, 2021	Coronavirus • Energy infrastructure Firearms • GMOs • Labor LGBT • Marijuana Plastic bags Police department budgets Ridesharing Sanctuary jurisdictions • Soda taxes