Trump religious objection order upends LGBT protections

Posted October 08, 2017

The memo itself does not specifically reference gay or transgender people, but given that its instructions are about how Department of Justice agencies should take religious freedom issues in mind when enforcing laws, contracting, and distributing grants, there was an immediate concern from LGBT activist groups and allies that this was the "permission to discriminate" they've suspected the administration had been planning all along, but had not yet come.

In a call with reporters, ADF CEO Michael Farris confirmed to ABC News that Sessions met with the group during a series of so-called "listening sessions" convened by the Attorney General, who says he was "seeking suggestions regarding the areas of federal protection for religious liberty most in need of clarification or guidance".

RFRA does not permit the federal government to second-guess the reasonableness of a sincerely held religious belief.

It's actually not terribly clear, though, that this memo makes much of a difference in how the current Justice Department will tackle LGBT discrimination issues because of how it is already tackling LGBT issues.

Also today, the Trump administration issued two new federal rules gutting the Affordable Care Act's mandate for employer-provided insurance plans to include coverage for contraceptives at no cost to the employee.

"Today the Trump-Pence administration launched an all-out assault on LGBTQ people, women, and other minority communities by unleashing a sweeping license to discriminate", said Human Rights Campaign president Chad Griffin. "The Trump Administration is forcing women to pay for their boss's religious beliefs", said ACLU senior staff attorney Brigitte Amiri.

Under the interim final rules released Friday, non-profits, small businesses, and even some publicly-traded companies can apply for a religious exemption to the mandate, if they establish that complying with the mandate would violate their religious beliefs. That could conflict with former President Obama's 2014 executive order barring anti-LGBT discrimination in the workplace, which President Trump said he'd uphold, and green-light anti-LGBT discrimination among federal contractors in other capacities, such as the denial of services.

Rick Garnett, a law professor at University of Notre Dame, said in some respects, the guidance served to "summarize, re-state, and endorse existing and established Supreme Court doctrine", but in others, it took "strong religious-freedom stands on questions that are contested".

Trump's order is being challenged in court, though some religious activists and experts have said it was more symbolic than practically meaningful.

Sessions' assertion that "every American has a right to believe, worship, and exercise their faith" is, on its face, an innocuous-sounding statement with which anyone who possesses a pocket Constitution would have a tough time disagreeing.

"A law that seeks to compel a private person's speech or expression contrary to his or her religious beliefs implicates both the freedoms of speech and free exercise", which Sessions wrote in the appendix, bolsters the argument of the baker who doesn't want to make a cake for a gay man or woman's birthday. For instance, it would prohibit federal grants and contracts from being conditioned on a religious grantee/contractor taking action (or refrain from taking action) in violation of its religious beliefs. But critics say the guidance could undermine protections for the LGBT community.

While it is now the position of the Department of Justice that Title VII protections do not extend to transgender individuals, employers should still be careful to avoid discrimination on the basis of gender identity, as the law is still unsettled. The U.S. Supreme Court recently agreed to review the Phillips case. Discrimination against transgender people is sex discrimination, just as DOJ recognized years ago.

"This discrimination is not an American value".

Additionally, in 2015 while Mike Pence was governor, in passed its own version of the Religious Freedom Restoration Act, despite outcry from opponents who argued the bill could be used to legally discriminate against LGBTI people.