By: Tyler DeMers
I. Introduction
Arizona’s 56th Legislative Session in 2023 has seen bills proposed that seek to restrict LGBTQ+ protections. These include Senate Bill 1030 that would require venues that host drag performances to be zoned as adult performance venues.[1] There are concerns that this bill, and those like proposed in other states, are so broad and vague that they could be interpreted to include all individuals with diverse gender expression or gender non-conforming.[2] Another proposed bill, Senate Bill 1001, prohibits any employee or independent contractor at public or charter schools from “knowingly address[ing], identify[ing] or refer[ing] to a student who is under eighteen years of age by a pronoun that differs from the pronoun that aligns with the student’s biological sex” unless the school district receives written consent from the student’s parent.[3] These state-level bills seek to restrict gender identity protection; however, a number of cities in Arizona provide certain protections for LGBTQ+ individuals even as the state legislature takes up bills designed to restrict such rights.
II. City Ordinances in Arizona.
As of January 2023, Arizona does not have any state statute that protects LGBTQ+ individuals from employment, housing, public accommodation, or credit discrimination.[4] Eleven (11) cities in Arizona have non-discrimination ordinances providing protections to LGBTQ+ individuals to various degrees as of 2022.[5] These cities are: Chandler,[6] Flagstaff,[7]
| Table 1: Population of Arizona Cities with Non-Discrimination Ordinances | |
| City | Population |
| Phoenix | 1,608,139 |
| Tucson | 542,629 |
| Mesa | 504,258 |
| Chandler | 275,987 |
| Glendale | 248,325 |
| Scottsdale | 241,361 |
| Tempe | 180,587 |
| Flagstaff | 76,831 |
| Sedona | 9,684 |
| Winslow | 9,005 |
| Tolleson | 7,216 |
| City Total | 3,704,022 |
| Arizona | 7,151,502 |
| Percent (%) | 51.79% |
Glendale,[8] Mesa,[9] Phoenix,[10] Scottsdale,[11] Sedona,[12] Tempe,[13] Tolleson,[14] Tucson,[15] and Winslow.[16] Using data from the 2020 United States Census, the ordinances protecting LGBTQ+ residents in these 11 cities cover just over 50% of the Arizona population.[17]
There are large variations regarding the protected identities under each City’s unique non-discrimination ordinance. The table below provides information on protected identities and statuses drawn from the cities’ respective non-discrimination ordinances as of January 2023:
Table 2: Arizona Cities Non-Discrimination Ordinances Protected Statuses
Additionally, employer or contractor coverage under City ordinances varies across Arizona based on each specific non-discrimination ordinance’s definition of “Employer.” Each ordinance also only applies in each City if those employees are employed within the respective Cities “in each of twenty (20) or more calendar weeks in the current or preceding calendar year and includes any agent of such person.”[18] For employers in Arizona, the threshold number of employees required for a city’s non-discrimination ordinance to apply is delineated in the following chart:
Table 3: Applicability of City Non-Discrimination Ordinances by Employee Count[19]
| One (1) or More Employees | Phoenix Scottsdale Sedona Tempe Tolleson Tucson (but not more than 100) Winslow |
| Five (5) or More Employees | Glendale Mesa |
| Six (6) or More Employees | Chandler |
| Fifteen (15) or More Employees | Flagstaff |
For contractors and vendors to the Cities, the nondiscrimination ordinances apply in the following manner:
Table 4: Applicability of City Non-Discrimination Ordinances to City Contractors[20]
| Applicable to All Contractors | Chandler Scottsdale Sedona Tolleson Tucson[21] Winslow |
| Applicable to Contracts who have Undergone a Competitive Solicitation Process and Awarded a Contract with the City through a formal award from the Council | Glendale Mesa Tempe |
| Contractors with More than Thirty-Five (35) Employees | Phoenix |
| Ordinances Not Applicable to Contractors | Flagstaff |
Finally, each of the non-discrimination ordinances contains exclusions for certain businesses and organizations. These exclusions all apply to religious organizations, the United State government or agencies in the Cities, private membership clubs exempt from taxation, social clubs, and rental housing for not more than two families living independently.[22] Flagstaff and Tucson also include clauses stating that the non-discrimination ordinances are not applicable to businesses or enterprises on or near an Indian reservation with respect to “publicly announced employment practice[s]… under which preferential treatment is given to any individual because he/she is a Native American living on or near a reservation.”[23]
III. Implications for Arizona Residents
Governor Janet Napolitano first signed an executive order prohibiting discrimination on the basis of sexual orientation against state employees in 2003.[24] More recently, newly elected Governor Katie Hobbs signed an executive order prohibiting discrimination in employment and contracting upon the basis of sexual orientation and gender identity.[25] Between the signing of these two executive orders, most Arizona cities adopted their non-discrimination ordinances.
After the 2022 elections, the Arizona legislature only has a slim Republican majority. The Arizona House is currently Republican led, with 31 Republican seats to 29 Democratic seats,[26] and the Arizona Senate is Republican led with 16 Republican seats to 14 Democratic seats.[27] With Democratic Governor Katie Hobbs, any bill seeking to limit the rights of LGBTQ+ individuals that may pass the legislature would likely be vetoed, and it is unlikely that either chamber could get the required two-thirds[28] vote to override the gubernatorial veto.
With Governor Hobbs’ executive order, and the Supreme Court’s decision in Bostock v. Clayton County,[29] there are a number of protections in Arizona for LGBTQ+ individuals in employment at the state and federal levels; under the non-discrimination ordinances in certain Arizona cities public accommodation and housing is also protected. However, Justice Thomas’s concurrence in the Dobbs opinion indicates conservative willingness to reevaluate substantive due process precedents set in Griswold, Lawrence, and Obergefell.[30] This, plus the potential for a future Arizona governor to rescind Governor Hobbs’ executive order, as well as the current lack of state-level statutory protections for employment, housing, and public accommodations,[31] all lead to LGBTQ+ protections in Arizona sitting on a thin precipice if the political landscape shifts in the future.
The eleven Arizona cities’ non-discrimination ordinances, as mentioned previously, protect just over 50% of Arizona’ population from certain levels of discrimination and serve as a final line of protection against discrimination if an individual is not protected at the state or federal level. To better protect Arizona’s LGBTQ+ communities, the eleven Arizona cities may want to incorporate areas of protection provided currently by other Cities but not themselves, in order to standardize protections across the state. This can include cities like Flagstaff expanding its non-discrimination ordinance to include housing, or having cities include gender expression alongside identity as well as genetic information, on its protected list. Second, additional Arizona cities should adopt non-discrimination ordinances to protect Arizona’s residents from various forms of discrimination. Finally, the Arizona legislature should adopt a state-side non-discrimination ordinance to protect Arizona’s residents should the Supreme Court reconsider its substantive due process precedents, especially for LGBTQ+ protections. The political feasibility of the legislature adopting a non-discrimination statute is marginal. However, such a goal could be an important campaign policy proposal for the Arizona Democrats in the 2024 election cycle.
Tyler (he/him) is currently a 2L at Arizona State University’s Sandra Day O’Connor College of Law. Prior to law school, he graduated from the University of Arizona with a Master’s of Public Administration. He has a strong interest in government policy, and how legislation and administrative actions impact diverse communities. Outside of school, you can find him playing board games and trying new restaurants across Phoenix.
[1] S.B. 1030, 56th Leg., 1st Reg. Sess. (Ariz. 2023).
[2] Jo Yurcaba, With Over 100 Anti-LGBTQ Bills before State Legislatures in 2023 so far, Activists say they’re ‘Fired Up,’ NBC News (Jan. 14, 2023), https://www.nbcnews.com/nbc-out/out-politics-and-policy/100-anti-lgbtq-bills-state-legislatures-2023-far-activists-say-fired-rcna65349. (quoting Jace Wilder, education manager at the Tennessee Equality Project)
[3] S.B. 1001, 56th Leg., 1st Reg. Sess. (Ariz. 2023).
[4] Local Nondiscrimination Ordinances, LGBT MAP, https://www.lgbtmap.org/equality-maps/non_discrimination_laws.
[5] Our Guide to Your City Council, Equality Arizona, https://equalityarizona.org/city#:~:text=In%202022%2C%20eleven%20Arizona%20cities,protections%20were%20won%20only%20recently.
[6] Chandler, Ariz. City Code ch. 63 (2022), https://public.destinyhosted.com/chanddocs/2022/CC/20221107_610/3169_2022.11.03_Chandler_Embracing_Diversity_Ordinance_ODH_MO_CE_version_(with_exception_for_small_businesses)_(002).pdf.
[7] Flagstaff, Ariz. City Code ch. 14-02 (2013), https://www.codepublishing.com/AZ/Flagstaff/html/Flagstaff14/Flagstaff1402000.html.
[8] Glendale, Ariz. Municipal Code ch. 34 (2021), https://library.municode.com/az/glendale/codes/code_of_ordinances?nodeId=PTIICOOR_CH34NSC.
[9] Mesa, Ariz. City Code ch. 14 (2021), https://www.mesaaz.gov/government/diversity-office/city-of-mesa-title-vi-notice-to-the-public/non-discrimination-ordinance#:~:text=The%20ordinance%20allows%20businesses%20to,with%20the%20gender%20they%20identify.
[10] Phoenix, Ariz. City Code ch. 18 (2013), https://www.phoenix.gov/eodsite/Documents/094166.pdf.
[11] Scottsdale, Ariz. Rev. Code ch. 15 (2021), https://www.scottsdaleaz.gov/codes/anti-discrimination-ordinance.
[12] Sedona, Ariz. City Code ch. 9.30 (2015), https://sedona.municipal.codes/SCC/9.30.020
[13] Tempe, Ariz. City Code ch. 2 (2014), https://www.tempe.gov/government/diversity-equity-and-inclusion/anti-discrimination-ordinance.
[14] Tolleson, Ariz. Code of Ordinances ch. 2 (2021), https://www.tolleson.az.gov/DocumentCenter/View/311/Ord-490-NS—Fair-Housing?bidId=.
[15] Tucson, Ariz. City Code ch. 17 (1999), https://www.tucsonaz.gov/files/oeop/Chapter_17.htm.
[16] Winslow, Ariz. Municipal Code ch. 9.11(2018), https://www.tucsonaz.gov/files/oeop/Chapter_17.htm.
[17] Arizona: 2020 Census, United States Census Bureau, https://www.census.gov/library/stories/state-by-state/arizona-population-change-between-census-decade.html.
[18] Supra notes 6-16.
[19] Id.
[20] Id.
[21] Tucson, Ariz. Procurement Code ch. 28-132, https://codelibrary.amlegal.com/codes/tucson/latest/tucson_az/0-0-0-21671#JD_28-138.
[22] Id.
[23] Supra notes 7 and 15.
[24] Exec. Order No. 2003-22 (June. 21, 2003), https://azmemory.azlibrary.gov/nodes/view/44697?keywords=&type=all.
[25] Exec. Order No. 2023-01 (January 2, 2023), https://azgovernor.gov/office-arizona-governor/executive-order/2023-01 (outlining that all protected areas include: race, color, sex, pregnancy, childbirth or medical conditions related to pregnancy or childbirth, political or religious affiliation or ideas, culture, creed, social origin or condition, genetic information, sexual orientation, gender identity or expression, national origin, ancestry, age, disability, military service or veteran status, or marital status).
[26] House of Representatives Member Roster, Arizona State Legislature (2023), https://www.azleg.gov/MemberRoster/?body=H
[27]Senate Member Roster, Arizona State Legislature (2023) https://www.azleg.gov/MemberRoster/?body=S
[28] Ariz. Const. art 5, § 7 https://www.azleg.gov/viewDocument/?docName=https://www.azleg.gov/const/5/7.htm.
[29] Bostock v. Clayton Cty., 140 S. Ct. 1731, 207 (2020) (holding that firing an employee merely for being gay or transgender violates Title VII of the Civil Rights Act of 1964).
[30] Dobbs v. Jackson Women’s Health Organization, 142 S.Ct. 2228, 2300 (Thomas, J. concurring). https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf.
[31] LGBT MAP, supra note 4.
Law Journal for Social Justice 