The Labor Department proposed a new rule Wednesday that would allow broad religious exemptions for businesses with federal contracts, which could undermine the rights of LGBTQ people and other marginalized groups. This could apply to hundreds of thousands of contractors and subcontractors.
It applies to a number of organizations, such as schools, societies, and corporations. The rule says, “A religious purpose can be shown by articles of incorporation or other founding documents, but that is not the only type of evidence that can be used.”
“The problem isn’t so much that [contractors] will necessarily hold sincerely religious beliefs, but they will use this as an excuse for their homophobia and their transphobia,” said Victoria Rodriguez-Roldan, senior policy counsel for the National LGBTQ Task Force. “At the Task Force, we are concerned and many people of faith and faith-based communities that are progressive may see this as a problem.”
Several LGBTQ organizations and organizations focused on the separation of church and state attended meetings with Office of Federal Contract Compliance Programs (OFCCP) officials this summer in anticipation of the rule. The National LGBTQ Task Force, Americans United for Separation of Church and State, National Women’s Law Center, National Center for Transgender Equality, and the Human Rights Campaign held meetings with officials from May to July about the proposed rule.
Rodriguez-Roldan said that she met with the director of the OFCCP, Craig E. Been, and that he “kept insisting” that, under OFCCP regulations, gender identity and sexual orientation were still protected.
“I did say we are aware but we don’t want any exceptions to them based on religion,” she said.
An August 2018 directive mentioned several U.S. Supreme Court cases to justify its guidance to OFCCP officials, including Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Communication,Trinity Lutheran Church of Columbia, Inc. v. Comer, and Burwell v. Hobby Lobby Stores, Inc. and recent executive orders.
In the Masterpiece Cakeshop case, in which shop owner Jack Phillips refused to make a wedding cake for a gay couple, the court narrowly ruled in 2018 that the Colorado Civil Rights Communication did not employ religious neutrality when it found that the bakery discriminated against the couple. It reversed the CCRC’s decision. In the case involving Trinity Lutheran Church, the court held in 2017 that when a state program denied a grant to a religious school and provided grants to non-religious groups, it violated freedom of religion. The court ruled in Burwell v. Hobby Lobby Stores, Inc. that closely held for-profit corporations are legal persons under the Religious Freedom Restoration Act.
In 2017, President Donald Trump released an executive order on Promoting Free Speech and Religious Liberty that would “guide the executive branch in formulating and implementing policies with implications for the religious liberty of persons and organizations in America.” In 2018, the president established a White House Faith and Opportunity Initiative. LGBTQ rights groups said they were concerned these orders would weaponize religious freedom rights to discriminate against LGBTQ people.
In 2014, President Barack Obama signed an executive order that amended two executive orders by addressing LGBTQ anti-discrimination protections for federal employees. Trump said he would not rescind it. However, a Justice Department brief argued against protections for queer workers.
In a statement following news of the rule, m the National Center for Transgender Equality said the regulation is “another attempt to allow contractors to circumvent a 2014 executive order prohibiting discrimination on the basis of sexual orientation or gender identity by any federal contractor. In 2017, President Trump weakened this rule by eliminating reporting standards for contractors.”
“This administration has clearly shown a propensity to use religious liberty to give a license to discriminate,” said Frank J. Bewkes, policy analyst for the LGBT Research and Communications Project at the Center for American Progress. (ThinkProgress is an editorially independent newsroom housed within the Center for American Progress Action Fund.)
In an interview before the proposed rule dropped, Bewkes said he does not see how the cases mentioned in the directive would justify this rule. Shannon Minter, legal director for the National Center for Lesbian Rights, told INTO last year that the directive was “contrary to established law” and said that, in the past, the department has made it clear religious contractors can prefer members of their religion but can’t discriminate because of their religion.
“By eliminating that important qualification, the new directive is confusing at best and at worst sends a dangerous and false message that such discrimination is now permitted,” he said.
Protections for workers or prospective workers for federal contractors and subcontractors are important for the protection of LGBTQ workers’ rights when there is only a patchwork of employment protections on the state level. Senate Republicans refuse to consider the Equality Act, which would clarify and expand LGBTQ protections on the national level in employment, housing, and other areas. According to the Movement Advancement Project, only 21 states and the District of Columbia have passed laws explicitly prohibiting discrimination and gender identity in employment and housing.
The Williams Institute at the UCLA School of Law, using Gallup data, estimates that 4.5% of American adults are LGBTQ. Among millennials, 8.2% identified as LGBTQ. Federal contractors are responsible for employing about one-fifth of the country’s workforce.
Bewkes said the rule could affect an even larger number of people.
“This is a huge number of people this is affecting who are LGBTQ workers. And once you consider religious exemptions, sometimes people use it for other things. What if you’re in an [interracial marriage] and your employer disagrees with that on religious grounds?” Bewkes said. “Is that something that is going to be a problem? We’ve seen in South Carolina with adoptions and religious exemptions that people are not necessarily turned away because of their sexual orientation and identity. They’re being turned away because their specific religion is not the religion of the agency.”
Bewkes added that this is really an expansion of exemptions that already apply to The Civil Rights Act of 1964.
“They are asking for an expansion of that … They’re asking for [an exemption] for anyone who is religiously affiliated in any way, and that opens up a whole Hobby Lobby issue and would be very concerning. The larger the exemption the more undermined any nondiscrimination protection becomes, because it’s enforceable against fewer people. It’s just simple numbers. What they’re asking for would be overly broad.”