Looking at regrets, what-ifs in the wake of NDO’s defeat

Jani McCall didn’t sleep much Tuesday.

She is the Billings City Council member who first suggested, in December, that the city consider a nondiscrimination ordinance. Tuesday morning, the NDO went down on a 6-5 vote, with Mayor Tom Hanel casting the deciding vote shortly after 3 a.m.

“I slept for about three hours and I’ve been thinking about it ever since,” McCall said Tuesday afternoon

She kept asking herself if there was any way she or other supporters could have changed the outcome, but the vote came suddenly, after relatively little discussion. Almost before she knew it, seven months of intense politicking and wrenching public debate was over and the NDO was dead.

Councilman Brent Cromley was also caught by surprise. It was he who made the motion to approve the NDO after a public hearing that lasted nearly five hours.

The NDO would have prohibited discrimination in housing, employment and public accommodations against people on the basis of sexual orientation and gender identification or expression. It had been dissected, debated, altered and tweaked at a series of council meetings and work sessions, but it still seemed that the split was 5-5, with the mayor cast as the tie-breaker.

Voting with the mayor to kill the NDO were Mike Yakawich, Denis Pitman, Angela Cimmino, Rich McFadden and Shaun Brown. Besides Cromley and McCall, those in favor were Becky Bird, Al Swanson and Ken Crouch.

Cromley said he decided to move for an NDO that was everything supporters had wanted from the beginning. His motion stripped the ordinance of a provision that would have required transgender people to use bathrooms or locker rooms “designated for their anatomical sex, regardless of their gender identity.”

He also moved that any damages awarded to a successful claimant on the basis of the NDO be determined by the Municipal Court judge, rather than having fines capped by the City Council.

In addition, he wanted the ordinance to take effect 30 days after approval on second reading — the normal procedure for ordinances — rather than waiting for the state attorney general to decide whether the city had the authority to pass such an ordinance.

The council itself, against the advice of city staff and NDO supporters, had requested an AG opinion in June. They were told Monday night that the AG’s office would decide within 30 days whether to consider the request, and then take four to five months to issue an opinion, if there was to be one.

Cromley said later Tuesday that he assumed someone on the council would move to amend his motion, to add some of those provisions back in to make it palatable to opponents.

But when McFadden, one of the council members who seemed mostly strongly opposed to the NDO, moved to amend it to cap damage awards and to put the locker room exclusion back in, nobody seconded the motion.

At that point, Pitman said perhaps it was best to vote on Cromley’s motion, since it contained what NDO supporters always wanted. After all those months of debate, he said, why talk about it for a few more hours?

“I think Denis called it right,” Cromley said. “He said there’s no reason with trying to fool around and amend it.

But that lost chance is what deprived McCall of sleep.

“I have played through it in my head so many times. … I have some regrets, a lot of regrets, how that all played out last night,” she said.

McCall said she envisioned someone making an original motion to approve an NDO with all the compromises the council had worked through earlier. Then, there could have been motions to make amendments stripping some of those provisions out.

As it was, she said, when Cromley moved for an NDO with all the compromises gone, they were almost forced to have a vote on it as is. And supporters expected amendatory motions to come from their ranks. McFadden caught them off guard by offering the amendments himself.

Another factor, McCall said, was that Hanel might have joined the opponents no matter what compromises were made in the NDO.

She said she could see that Hanel had a legal pad with handwritten notes on it long before the vote, meaning he was already prepared to explain his “no” vote.

“I really think he intended to vote against it,” she said. “That (the legal pad) gave me the sense he knew what he wanted to do with this.”

Cromley said he and McCall did talk about how he would make the motion to approve the NDO, but they made no other strategic decisions. Cromley said he expected Hanel to bring up his concerns with the NDO, allowing supporters to offer amendments.

But Hanel said nothing during the council debate. He waited until the vote was 5-5 and then, before casting his vote, picked up his legal pad and spoke for nearly eight minutes. He did not argue for or against the NDO or try to justify his vote. He spoke of his love for Billings and his sense of fairness, then ended simply by saying, “I do not think Billings is ready at this time” for an NDO.

Hanel did not return phone calls seeking his comments Tuesday.

Pitman said he was opposed to the NDO because he believed it would create an illusion of safety without actually making anyone safer. And though he was concerned about predators claiming to be transgender going into women’s facilities, he said he was mostly concerned about having a hodgepodge of NDOs.

Four other cities in Montana have already passed NDOs, as have hundreds of cities and a handful of states around the country. Having all these separate laws floating around seemed to make a mockery of equality for all, he said.

If there are to be such protections, he said, they should come from Congress or state legislatures. For now, the City Council has some major issues on its plate, including budget shortfalls, public safety needs and homelessness.

“We’ve been so tied up with the NDO that everything else seems to be on the back burner,” he said. “We’ve got to get back to running the city.”

Cromley said he would consider reintroducing an NDO, but probably not soon.

“I don’t want to appear stubborn, but on the other hand, I do feel strongly about it,” he said.

McCall had similar thoughts.

“We need to get together, those of us who are like-minded on this, and talk about what went wrong and what went right and kind of sketch out what our approach is going to be,” she said. But for now, she added, “I think it’s pretty much a done deal.”

Liz Welch, of Billings, the lesbian, gay, bisexual and transgender coordinator for the Montana chapter of the American Civil Liberties Union, said she was saddened and disappointed by the vote, but energized by the effort to pass the NDO.

On Monday, sitting with other NDO supporters inside the First Congregational United Church of Christ near City Hall, she said, “I kind of came to this epiphany.”

She was struck by the number of teenagers there, kids who might not ordinarily have gotten involved in local politics.

“They were engaged and they were excited and they were nervous,” she said. “This really meant something to them,” and she expects them to stay active in politics and in the fight for LGBT rights, which she called “the human rights issue of our time.”

Cromley said that regardless of what happens in Billings, progress is being made on LGBT rights. He said it’s only a matter of time before Montana’s voter-approved ban on same-sex marriage will be found unconstitutional by a higher court, as has happened all over the country.

That day will come, he said, and if Billings still hasn’t passed an NDO, the city could find itself in an odd position.

“I see us having same-sex marriages in the state,” he said, “but they may not be able to take their honeymoons here.”

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