Lesbian mayor loses fight over 'transgender' ordinance

Houston Mayor Annise Parker

The lesbian mayor of Houston, whose legal defense of a "transgender" ordinance passed by her council escalated to a national scandal when she subpoenaed the sermons of local pastors, has lost her fight in court.

The Texas Supreme Court on Friday ordered that the council must either repeal or put to a popular vote the ordinance, which drew strong opposition for opening ladies' public restrooms and locker rooms to men who claim they are women.

"If the city council does not repeal the ordinance by August 24, 2015, then by that date the city council must order that the ordinance be put to popular vote during the November 2015 election," the ruling said.

The court also suspended any enforcement of the ordinance.

At the behest of Mayor Annise Parker, the city adopted an ordinance that forbade discrimination based even on a person's "perceived" sexual identity.

The ordinance has faced opposition from a coalition of local pastors and others that gathered 55,000 signatures for a petition seeking either to repeal the ordinance or to allow voters to decide.

The city secretary stopped counting the signatures before going through the entire list, because she determined the petition had acquired the necessary 17,269 names.

However, the city lawyer intervened and fought the petition in court, arguing there were just over 2,000 valid signatures. The district court determined there were 16,684.

Even though an appeal of the ruling is pending before the 14th Court of Appeals, the Texas Supreme Court intervened, granting a writ of mandamus, which compels a government official to fulfill official duties.

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"We agree with the relators that the city secretary certified their petition and thereby invoked the city council's ministerial duty to reconsider and repeal the ordinance or submit it to popular vote," the order said. "The city secretary unequivocally stated that 'I am able to certify that ... the number of signatures verified on the petition submitted on July 3, 201, is 17,846' and that only 17,269 were required."

The court said the charter "requires the city secretary to 'certify' her findings, and the only findings she expressly certified were her own. The city attorney may, no doubt, give legal advice to the city secretary, but he cannot assume her duties."

"Once the city council received the city secretary's certification, it had a ministerial duty to act," the court said. "According to the charter, following the city secretary's certification, 'the council shall immediately reconsider such ordinance or resolution and, if it does not entirely repeal the same, shall submit it to popular vote at the next city general election.'"

The opinion said: "Faced with the city secretary's certification, the city council had no discretion but to repeal the ordinance or proceed with the election process. If the city council believed the city secretary abused her discretion in certifying the petition or otherwise erred in her duties, it was nevertheless obligated to fulfill its duties under the charter and thereafter seek any affirmative relief to which it might be entitled.

"But the city council did not do so. Instead, it refused to fulfill its ministerial duty, forcing the petition organizers to file suit."

A Texas-based political blog BigJollyPolitics.com noted the appeal argued the "wrongful rejection" of the referendum petition is "irreparable."

"Under the terms of city of Houston's charter, ordinances like the ERO may only be challenged within the first 30 days of the enactment or publication, whichever is later," the appeal said. "Once that initial 30 day deadline passes, the right to repeal by referendum petition evaporates. Thus, by improperly rejecting the ERO referendum petition, respondents have wrongfully stripped these relators from their right to petition government for a redress of their grievances, in violation of the Houston city charter, as well as the state and federal Constitutions."

The blog pointed out that the city checked 19,177 signatures against the Harris County list of qualified voters. Of those, 17,846 were correct, for a 93 percent success rate.

WND has reported on the cases since the beginning.

When the coalition announced its appeal, it said that after "ten months, thousands of man hours and hundreds of thousands of dollars in legal costs for the coalition, Judge Robert Schaffer caved in to political pressure by the LGBT political force who endorsed him and ruled that we were a few hundred signatures short."

Referencing the trial court outcome, the coalition said the judge's "subjective determination that a group of circulators' signatures were not legible – a standard that does not exist in Texas election law and violates the federal Voting Rights Act – invalidated over 5,000 signatures, nearly 10 times the number needed to erase even his declared shortfall."

"We are confident that his decision will be overturned on that basis alone at the state Court of Appeals."

The case drew national attention when WND broke the story that Parker had issued subpoenas to five pastors for copies of their sermons and other communications. The pastors later called for an investigation of City Hall's actions.

A nationwide outpouring of criticism prompted officials to drop the subpoenas.

Rush Limbaugh at the time called the subpoenas "one of the most vile, filthy, blatant violations of the Constitution that I have seen."

The No UNequal Rights Coalition said in a statement on announcing its appeal: "We knew on July 3, 2014, that the massive coalition of pastors, churches, community leaders and citizens who had worked tirelessly over 30 days to gather over 54,000 signatures had submitted more than enough valid signatures to Houston City Secretary Anna Russell. On August 4, 2014, it was evident that Mayor Annise Parker had conspired with her City Attorney David Feldman to deprive the voters of the right to decide at the ballot whether to protect our women from having biological males in their restrooms, showers and locker rooms. She broke the law and declared the petitions invalid.

"We could not allow that kind of tyranny and lawlessness to occur in Houston so we filed a legal challenge against the mayor and city of Houston. During the succeeding months of depositions, hearings, briefs and trial, coalition attorney Andy Taylor firmly established that under established Texas law and precedent there were indeed not only an adequate number but a surplus of valid signatures submitted."

During preparation for the court fight, longtime city Secretary Anna Russell testified the city charter "provides that the city secretary determine the number of qualified voters who sign the petition."

In her testimony, she was asked: "And based on that understanding, you did that; and the result of your work was that 17,846 signatures had been validated. And that was more than the minimum number necessary, correct?"

"That's correct," she replied.

A jury at trial found no fraud by the pastors coalition.

Pastor Dave Welch, of the Houston Area Pastor Council, whose members had worked on the case, said it was a ray of good news in a society that hasn't seen much lately.

"The umpire called a strike on this one," he told WND. He said the Supreme Court essentially agreed with the pastors, who had argued all along that the city secretary's affirmation should have immediately prompted a repeal, or vote.