For the Fifth Time in 10 Years, North Dakota Votes "No" on LGBTQ Nondiscrimination Protections

“After 10 years of fighting this battle, it gets weary here.”

For the fifth time in 10 years, North Dakota quietly voted down an inclusive LGBTQ nondiscrimination bill last month.

On January 25, Senate Bill 2303 was defeated following a vote in the upper chambers of the North Dakota Legislative Assembly. Twenty Senators voted in favor of housing and employment protections on the basis of sexual orientation and gender identity, while 27 voted against the proposal.

Earlier in the month, the Senate Judiciary Committee slapped the legislation with a “Do Not Pass” recommendation by a 5–1 margin.

Kevin Tengesdal, organizer of the online LGBTQ support group Prairie Rainbow, was a spectator in the North Dakota Senate when lawmakers stamped out SB 2303. Supporters of the bill reportedly unfurled a banner from the balcony reading “Shame!” as the votes were tallied.

The spectacle was all too familiar, Tengesdal tells NewNowNext. “[Opponents] did not see any need for this legislation, even though every committee here [has heard] a majority of supporters and a minority of opposition,” he says. “After 10 years of fighting this battle, it gets weary here.”

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North Dakota State Capitol is located in Bismarck, North Dakota, USA.

The North Dakota State Capitol Building in Bismarck.

Critics of the legislation included the North Dakota chapters of the Concerned Women for America and Family Policy Alliance, as well as the North Dakota Catholic Conference. These right-wing groups have been the key opponents of the bill since it was originally put forward in 2009, coming out to oppose it every time the issue comes up.

The North Dakota Legislative Assembly meets every two years, and nondiscrimination bills were put forward in 2009, 2013, 2015, and 2017.

According to North Dakota Human Rights Coalition organizer Barry Nelson, conservatives use whatever anti-LGBTQ myth is currently in fashion to derail the discussion. In 2015, it was “religious freedom.” This time around opponents added to the mix claims SB 2303 “promotes special rights” and “goes against traditional values.”

“It makes you think that there was really not a serious attempt to raise issues that could rectify the bill and make it acceptable to [conservatives],” Nelson tells NewNowNext. “They just didn't want the bill to go forward.”

But one of the more novel issues raised during the current legislative session came from Sen. Diane Larson (R-Bismarck). The Senate Judiciary Committee chairwoman claimed that despite the Plains States’ reputation for geniality, it isn’t the job of North Dakota lawmakers to “legislate people being nice to one another.”

Cities including Bismarck and Jamestown have already taken those steps by passing their own nondiscrimination policies. But these statutes only apply to city employees, instead of offering protections to all citizens.

In addition, Fargo’s nondiscrimination policy only covers sexual orientation.

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Fargo is the most populous city in the state of North Dakota, accounting for over 15% of the state population.

Fargo, North Dakota.

According to The Williams Institute at UCLA, that means 99% of LGBTQ North Dakotans can still be fired from their jobs because of who they are.

Although Republican Gov. Doug Burgum has expressed some willingness to support a statewide nondiscrimination bill, Nelson said there’s been extremely little progress in the past decade. He claimed the state has increasingly “become more conservative politically in terms of who gets elected into the legislature” since 2009.

“There were moderate Republicans who got primaried by extreme right-wing individuals,” he claims. “We've seen kind of a political shift in the state.”

Sen. Merrill Piepkorn, one of the two Democrats who backed SB 2303 in the Senate, predicted it would take a sea change in the North Dakota Legislative Assembly before a nondiscrimination bill reached to the governor’s desk. He claimed the makeup of the legislature has barely changed in the “last 15 or 20 years.”

“To hear something like that and to see it go down like that is not a big surprise,” Piepkorn tells NewNowNext of the bill’s failure. “We need to keep on trying and put it in again next time.”

While the North Dakota legislature refuses to budge on LGBTQ rights, the general population expresses a different view. When a nondiscrimination bill was approved by the state House in 2015, polling showed that nearly six in 10 (or 59%) of North Dakotans supported it. That’s a tremendous leap since 2004, when North Dakota voters overwhelmingly approved a constitutional amendment limiting marriage to one man and one woman.

Piepkorn believes the average North Dakotan no longer sees LGBTQ rights as an issue, arguing the legislature is “more conservative than the general population as a whole.”

But while the legislature continues to lag behind the times, supporters of SB 2303 are worried North Dakota’s failure to protect all its citizens will hamper its seemingly growing economy. Despite an oil boom in the northwest corners of the state, more than 14,000 positions in North Dakota are currently unfilled.

Tengesdal says it’s hard to attract new talent or keep the workers they have when North Dakota’s legislature keeps sending LGBTQ people the message they aren’t wanted.

“Unfortunately, there are a lot of people who choose to leave the state and vow to never return,” he says. “I do not have the financial means to move, and being the scrappy, stubborn Norwegian that I am, I want to stay and fight. I’m going to stay here and fight until I’m six feet under or until a Republican puts a bullet in me.”

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North Dakota Capitol in winter setting.

LGBTQ advocates say there are some small signs of progress in the legislature.

When the nondiscrimination bill was first heard 10 years ago, it was difficult to get supporters to testify in the legislature. Because of the lack of protections for LGBTQ people in North Dakota, community members worried that they could be targeted just for sharing their stories.

But this year, 16 individuals and community groups came out to the North Dakota Legislative Assembly in favor of SB 2303. Just four opponents spoke against it.

There is also some hope that a House version of the nondiscrimination bill could gain traction in the legislature. The key difference is that House Bill 1441 does not include protections on the basis of gender identity or expression; even if it were signed into law, transgender people could still face legalized discrimination in the state.

The ACLU of North Dakota has already opposed the bill over its trans erasure, and mainstream LGBTQ organizations in the state are unlikely to support it. HB 1441 has yet to receive a hearing in the House.

But to those who fear the North Dakota Legislature will forever be stuck in the recent past, Nelson pointed to the Supreme Court’s landmark decision in Obergefell v. Hodges four years ago.

“I never believed that the Supreme Court would have ruled on marriage equality as quickly as they did,” he says. “I didn't believe there could be such a groundswell of change from being opposed to gay marriage to support for LGBTQ protections. If we can get our act together and continue to push this forward, we can be successful, even in a red state like North Dakota.”