The NDO at One Year: A struggle to enforce

This week marks a year since the San Antonio City Council amended its 20-year-old non-discrimination ordinance to include gender identity, gender orientation and veteran status. And to be sure, that ordinance didn’t pass easily. 

The vote to include gender identity and orientation in the NDO passed eight to three and included plenty of controversy–namely, former Councilwoman Elisa Chan, who was secretly recorded saying that homosexuals are disgusting and shouldn’t be allowed to adopt children. Then there’s Mayor Ivy Taylor. She represented District 2 at the time and voted against the language because of religious concerns, angering many in the LGBT community. Former Councilman Carlton Soules, who is running for Bexar County judge, also voted against protections for gender identity and orientation. The San Antonio Express-News reported last year that during four public forums in August 2013, 1,500 people expressed either opposition to or support for the measure to council members.

COSA is marking the anniversary by taking steps to improve the complaint process, including unveiling a website to help people navigate the NDO, and introducing intake forms and resolution timelines. And Taylor, who promised LGBT advocates that she would uphold the law, is introducing a citizen advisory board. The new board, which will be made up of members of the LGBT community, will not have enforcement authority, Taylor’s Chief of Policy Leilah Powell said. 

These changes follow criticism from advocates of the law that the City had failed to create a transparent complaint process and a clear path for enforcement, but they may not be enough to allay everyone’s concerns. 

Attorney Justin Nichols represents the only citizens who have filed complaints to date under the new NDO language. The ordinance’s passage was a huge victory, he says, but the new law lacks teeth. 

“I think, that as is the case frequently with NDO, historically, is they are debated on the merits of ‘should we’ and ‘should we not’ and the how is left for later,” Nichols said. “But I do think for NDOs to be effective, they must have a real enforcement mechanism, and it needs to be thought out ahead of time or very quickly.”

Nichols has experienced the NDO’s shortcomings firsthand. His client Matthew Hileman is a transgender man who filed the first NDO complaint in January. Hileman was a contract worker at AT&T, which is subject to the NDO as a third-party contractor for the city. Hileman alleges that he was effectively fired after he reported harassment at work. Evidence he submitted to the City includes an audio file of two AT&T employees allegedly talking about committing violent acts against transgender people, which Hileman recorded just one day before Council passed the NDO. 

In July, Sam Sanchez of the news blog QSanAntonio, and Ryan Loyd of Texas Public Radio, filed separate open-records requests with COSA seeking that recording and related voicemail messages. 

The City and AT&T asked Attorney General Greg Abbott’s office to allow COSA to withhold the audio files. The final argument in AT&T’s nine-page appeal to Abbott raises eyebrows: “Finally, Mr. Hileman’s complaints, affidavit and supporting exhibits should be withheld from disclosure because the City of San Antonio currently lacks investigative and enforcement protocols and procedures for its NDO. ... Additionally, because the City has not yet enacted an enforcement mechanism for the NDO, charged parties’ ability to mediate and attempt to resolve the matter is compromised by the possibility that unverified and uninvestigated information underlying the complaint may be disclosed to the public.” 

(Despite AT&T’s concerns, Hileman and AT&T began mediation last Friday.)

Deputy City Attorney Veronica Zertuche, who currently handles NDO complaints and questions from residents, businesses and advocacy groups, takes issue with those characterizations. It’s not that COSA has no enforcement or procedural mechanisms, it’s that there are several–and how a complaint is handled depends on where it fits under the law.  

“The enforcement, depending on the type of allegation—whether it falls into housing or public accommodations—the ordinance gives you some indication of enforcement,” she said, admitting, “It’s not the best.

“What the city council asked us to do is to consolidate the existing provisions that were non-discrimination policies, and so we consolidated those. Some of the provisions had more guidance for somebody who wants to file a complaint … we acknowledge that.” 

The discrepancy is clear in the NDO complaints filed in San Antonio. City contractors like AT&T are only obligated to accept the NDO as part of their contract with COSA, and a violation of those provisions isn’t a criminal offense. 

“My understanding is if the City found the violation occurred, they may consider it a breach of contract and take whatever measures they want, from a letter saying (to the contractor), ‘Remedy the breach,’ or saying, ‘We’re done.’ You know, it can run the gamut, so I don’t know,” Nichols said. He questions whether that’s adequate. “Are we really going to do business with a contractor who doesn’t want to respond and participate?” Nichols says it would be better if COSA took a hard stance with a business and said, you discriminated, we won’t do business with you. 

Nichols also represents Maricela Fonseca and Gina Ramirez, who filed an NDO complaint alleging that the popular watering hole Sanchez Ice House kicked them out of the establishment in June because they kissed while dancing. That complaint falls under public accommodation, which, Nichols said, is clearly treated as a criminal violation. “ ... It goes to the San Antonio Police Department, and is largely similar to if someone toilet-papered my house,” he said. “The police investigate, do what they can, take statements and charge in municipal court.” If the Fonseca and Ramirez complaint makes it to trial and Sanchez Ice House is found guilty, the business could be fined up to $500. Zertuche confirmed that the case has been handed over to the SAPD, which has assigned a detective to investigate.  

NDO housing-discrimination complaints, on the other hand, are handled through COSA’s Fair Housing Program, which investigates and attempts to mediate disputes. According to the NDO, if the parties can’t reach a solution, the case is handed over the U.S. Department of Housing and Urban Development, which may take civil action against people who violate the Civil Rights Act of 1964, which provides housing protections for age, sex and race. 

HUD’s new secretary is Julián Castro, San Antonio’s former mayor. Castro championed the NDO changes along with his childhood friend, District 1 Council Member Diego Bernal, who submitted the resolution to the council. That federal housing-discrimination law doesn’t include gender identity or orientation, however. In 2012, HUD issued Equal Access to Housing in HUD Programs Regardless of Sexual Orientation or Gender Identity rule, which extends protections to individuals who live in HUD-supported housing or apply for Federal Housing Administration loans, but that rule doesn’t affect private property owners.

Robert Salcido, San Antonio field organizer for Equality Texas, said the city attorney’s office told him that cases HUD cannot enforce would be kicked back to San Antonio, where they would be prosecuted as Class C misdemeanors.

Bernal argues that the law alone is a deterrent to potential discriminators.

“The existence of the NDO itself often resolves a lot of issues before they make their way to a complaint. Imagine a situation where someone attempts to discriminate and then they are reminded there is a law that prohibits that activity,” Bernal said. “Sometimes it stops it right before it starts. It’s not just so people have the opportunity to file a complaint. It’s so people who may be prone to discriminate are stopped in their tracks.”

Nichols echoed that sentiment, saying that discrimination issues are often resolved in cities with NDOs simply because the legal protections for gender identity and orientation raise awareness. 

Zertuche said COSA takes the NDO seriously while admitting the ordinance needs work.

“The general message to convey is that it is a very important policy and we are coming up on the one-year anniversary of the adoption and that it was a consolidation of existing provisions, some of which had more processes than others … we’re bringing them onto one place for the public to find,” Zertuche said. “We acknowledge that some provisions in areas were lacking and that’s what we’ve been trying to develop and that’s what we’ve been working on with earnest.” 

Zertuche said COSA has looked at Austin’s website, which she described as robust but not as easy to find as it could be. “In Austin, you have to use the search engine to find the NDO. It is our intent to place our link on the City’s main page. And we wanted to, you know, show it prominently.”

However, Austin’s enforcement mechanism is much easier to locate: the City has a Human Rights Commission, which was created in 1967, during the turmoil of the Civil Rights movement, to deter discrimination on the basis of race, color, religion, age or disability. In 2004, the ordinance was expanded to include gender orientation and gender identity. The commission, which is appointed by the council, meets monthly and advises the council and City administration. But it also has the authority to investigate and mediate complaints and recommend enforcement measures. 

“We don’t have that in our policies,” Zertuche said. “So depending on the area where the allegation arises, you’re going to have different city departments involved instead of a single commission.”

Nichols said the Austin model includes some crucial features worth emulating. “One, it is citizen-based, so it kind of adds that element of a jury or grand jury—regular folks looking into it,” he said. “Obviously, a City attorney would make sure they are guided. But also, I believe it is a volunteer board and commission, but it would not detract staff paid resources from the City. … So, I like that model. I think it is incredibly important to understand not only how to complain, but to have a uniform process that is fair for businesses and respondents as well.”

According to Powell, San Antonio’s new advisory board will consist of five or six members. 

“We are scheduled to meet in September and get a framework for it and talk about the processes, not only reporting, but updating it as well,” said Salcido, who has been asked to sit on the board. Powell said community activist Ruby Krebs has agreed to serve on the board, but as of deadline, Powell hadn’t reached out to all the people on their short list.

The advisory board will work with the mayor’s office, which in turn will work with all affected city departments and existing commissions to create an NDO commission with greater authority. 

“That’s the goal. The goal is to have an official committee or commission. We just don’t know yet about how it is constituted. Should it be a new commission? Should we figure out a way to have a working group with citizen representatives? There’s lots of appeal to that,” Powell said. “It’s a dynamic platform for change within the city, but I feel strongly that we have to have the affected departments in on the discussion because our solution might not work for them.” 

Any resolution will take months to explore and implement, Powell said, adding that it’s not clear yet how the new entity would be authorized or function within the City’s existing regulatory framework.

Nichols said the City has worked with him on his clients’ cases, and has welcomed feedback about the NDO process. “It makes it a little more unpredictable. But it is also exciting to be part of the process in developing it. … And so I think the City has taken considerable input from me and respondents and are trying to develop something,” Nichols said.

Mayor Taylor’s communications director, Cary Clack, said last week that the new NDO website will roll out Thursday, with a link on the City’s website, Salcido, who has had a sneak peek, was impressed with what he saw. “The website is pretty interactive and user-friendly,” he said.

While it’s not clear yet how the various pieces of San Antonio’s NDO enforcement process will work together, Nichols’s clients know exactly what they are looking for.

“What does everyone want to see out of this?” Nichols said. “The truth is none of my clients have a chance at a huge award. They are being exposed by media and really, what they want out of it, is to serve as examples and warnings to businesses. Times are changing and people are going to stand up.

Now folks are being held accountable. None of these individuals will financially benefit. They want those principles enforced here in our city.”

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