Editorial: SF supes must slow down on 12X changes

  • by BAR Editorial Board
  • Wednesday February 22, 2023
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San Francisco supervisors are looking to repeal part of a city ordinance that prevents companies from states with anti-LGBTQ laws from getting construction contracts. Photo: Steven Underhill
San Francisco supervisors are looking to repeal part of a city ordinance that prevents companies from states with anti-LGBTQ laws from getting construction contracts. Photo: Steven Underhill

The San Francisco Board of Supervisors is set to consider removing construction agreements from the prohibition of contracting in states that have discriminatory laws that target LGBTQ rights, reproductive rights, and voting rights. Chapter 12X of the city's administrative code, as it's known, was approved by the board in 2016. It banned city-funded travel to states that enact anti-LGBTQ laws and also prohibited the city from contracting with companies headquartered in those states. In 2019, the board expanded Chapter 12X to include states with restrictive abortion laws, and in October 2021, amended the ordinance a third time to include states that suppress voting rights. The number of states currently on the banned list is now 30. No state has rescinded an anti-LGBTQ law or expanded voting rights in order to be delisted, while Massachusetts was removed from the banned list in 2021 after changing its laws restricting abortion access.

Now, a proposal by District 11 Supervisor Ahsha Safaí would exempt construction contracts from Chapter 12X. While the supervisor has been working on this for several months, it only received a hearing before the board's rules committee on February 13, where the panel forwarded it on to the full board without a recommendation. As we previously reported, committee member Safaí and the chair, gay District 6 Supervisor Matt Dorsey, voted in favor, while the other committee member, District 10 Supervisor Shamann Walton, voted no. The full board is expected to take a vote at its February 28 meeting.

We strongly urge the Board of Supervisors to continue the item and send it back to committee to be considered with another Chapter 12X item. Gay District 8 Supervisor Rafael Mandelman has a Chapter 12X proposal that he's been working on for months — a broader plan that might do away with the ordinance entirely — and we think there needs to be far more discussion on the implications of jettisoning Chapter 12X. The construction carve-out from Safaí should be heard at the same time as Mandelman's plan, and it makes sense that they should be voted on together.

Dorsey told us in an editorial board meeting that the time has come to repeal Chapter 12X because it is costing the city too much money. Construction companies that may provide better value (i.e., lower qualified bids) in those banned states cannot compete for the projects, often leading to more expensive bids from those companies that qualify. With the city facing a projected $720 million budget deficit over the next two years, Dorsey believes that the law should be changed. "There's been zero number of states we've influenced to change their laws," he said, adding that he'd rather see libraries adequately funded and HIV services not cut. Dorsey told us he's even considering repealing the city's vaunted equal benefits ordinance, which he acknowledged helped pave the way for marriage equality. It requires companies doing business with San Francisco to offer the same benefits to domestic partners that they offer to married couples. The other issue Dorsey pointed to is the city itself does not know if Chapter 12X has been a benefit. That's evident in a somewhat hastily prepared report from City Administrator Carmen Chu's office that states, "12X's policy impacts are not clear," and, "12X has created additional administrative burden for city staff and vendors and unintended consequences for San Francisco citizens, such as limiting enrichment and developmental opportunities."

For his part, Mandelman, too, thinks Chapter 12X has outlived its usefulness. In a separate editorial board meeting, he said the city's travel and contracting bans far exceed California's, which has a travel ban for state-funded travel only. He told us that gay former supervisor Scott Wiener — who introduced the contracting ban when he was on the board and who is now a state senator — has indicated he no longer thinks Chapter 12X is effective. (Wiener confirmed that in a text message to us.) Mandelman gave an example that if the mayor wanted to furnish her office with furniture from a gay-owned company in a banned state, she wouldn't be able to do it. "I don't think the right way to make change is to flip the bird and walk away," he said.

Those may be valid points. But LGBTQ- and minority-owned construction companies as well as related small businesses in San Francisco were caught off guard by Safaí's construction contract carve-out, and strongly opposed it at the rules committee meeting. Safaí's office told us last week that he wanted to go ahead with his proposal because several big multimillion-dollar contracts will soon be set for bid, including construction projects at San Francisco International Airport and for the San Francisco Public Utility Commission.

Local small business owners were unified in their opposition, telling the committee that they were not contacted and there was insufficient economic data around the proposal. They also want to know how many of these smaller businesses were brought on as subcontractors for these big projects under the city's local business enterprise program. In response, Safaí's office told us last week that the supervisor had been talking with these small business groups.

We're concerned about the fact that these proposals to radically change or do away with Chapter 12X are throwing away equal rights and the city's progressive values to save money, even though there are numerous examples where going with the lowest bidder on a contract has ended up resulting in additional costs for shoddy work and missed deadlines. For years, LGBTQ people have been under attack in red states, and that is not in any way abating this year. State legislatures want to ban drag performances and prevent trans youth and their families from accessing gender-affirming care, to name just two current hot-button issues. If LGBTQ San Franciscans travel to these states on the banned list, they could be arrested or denied health care in an emergency. Their partners or spouses could be prevented from being with them in the hospital if that hospital does not receive federal dollars. These ramifications should be considered by the board in any discussions. One of Mayor London Breed's first acts when she took office in 2018 was to decline a trip to Alabama because the state was on the banned travel list. Now, however, she reportedly favors repealing or reforming the ordinance.

Discussions on such a major change to the city's policies deserve more than a single committee hearing and vote by the full board. And city leaders should consider Chapter 12X changes together after Mandelman submits his proposal. This piecemeal approach to scrapping support for the LGBTQ community, reproductive rights and voting freedoms, and standing up to conservative states with laws against these rights, is not the answer.

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