In a move that advocacy groups say will breed discrimination against the LGBTQ community, religious minorities, and women, the Trump administration on August 14 proposed a new rule giving federal contractors wide berth to use religion to justify discrimination in employment.
The administration’s proposal represents an about-face from the president’s 2017 vow to maintain the rights of LGBTQ employees and comes roughly two months before the Supreme Court will hear arguments about whether or not LGBTQ employees are protected under Title VII of the 1964 Civil Rights Act.
The proposed rule announced by the Department of Labor’s Office of Federal Contract Compliance Programs refers to years-old executive orders and Supreme Court decisions to justify expanding the scope of religious freedom in the area of employment.
The administration states that the proposed rule “should be constructed to provide the broadest protection of religious exercise permitted by the Constitution and other laws.”
To that end, the administration is offering a new interpretation of President Lyndon Johnson’s Executive Order 11246, which required equal opportunity for employment by private sector federal contractors. That order, the Trump administration states, “is intended to make clear that religious employers can condition employment on acceptance of or adherence to religious tenets without sanction by the federal government, provided that they do not discriminate based on other protected bases.”
Trump’s proposal also argues that Johnson’s order gives religious exemptions to “not just churches but employers that are organized for a religious purpose, hold themselves out to the public as carrying out a religious purpose, and engage in exercise of religion consistent with, and in furtherance of, a religious purpose.”
But Trump’s order appears to contradict President Barack Obama’s Executive Order 13672 from 2014, which amended the same order by Johnson to include protections on the basis of gender identity and sexual orientation in federal contracting. In addition to protecting contractors, Obama also amended a 1969 order by President Richard Nixon to include sexual orientation and gender identity as protected classes in the federal workforce.
Trump, in 2017, specifically said he would not interfere with that order, saying, “The executive order in 2014, which protects employees from anti-LGBTQ workplace discrimination while working for federal contractors, will remain intact at the direction of President Donald J. Trump.”
Notably, Trump’s proposal did not mention Obama’s 2014 executive order, but the two are linked by reference to Johnson’s order and there are concerns that it indeed targets Obama’s order because religious exemptions could effectively override LGBTQ rights — especially when the order contains a disclaimer stating that using religion as a shield to discriminate is permitted as long as it doesn’t impact protected classes. Sexual orientation and gender identity are not yet definitively protected classes under federal law, and the Trump proposal, in not referencing the Obama order, ignores the most explicit federal recognition of LGBTQ nondiscrimination protections.
A variety of LGBTQ groups tore into the administration, with some striking an exhausted tone reflecting Trump’s seemingly nonstop onslaught against LGBTQ people and other marginalized groups. The plans were announced just one day after the conclusion of a comment period regarding the administration’s recent efforts to wipe out Obamacare nondiscrimination protections for transgender people in healthcare.
“There are few values more sacred to the equality of all in this nation than the belief that nobody should be judged by an employer because of who they are or who they love, yet this administration continually seeks to undermine that value,” Mara Keisling, executive director of the National Center for Transgender Equality, noted in a written statement. “Whether it’s our right to health care, our right to housing, or our right to equal employment, we are committed to fighting every action this administration takes against us.”
Alphonso David, a longtime counsel to Governor Andrew Cuomo who recently became president of the Human Rights Campaign, underscored the reality that numerous marginalized groups could be negatively impacted by the rule.
“With this proposed regulation, the Trump administration is seeking to gut existing protections for LGBTQ people, women, and religious minorities, and we cannot stand idly by,” David said in a written statement. “This regulation, which directly contradicts Trump’s earlier promise, is a broad and sweeping effort to implement a license to discriminate against people on the basis of their gender identity and sexual orientation. Everyone deserves a workplace free from discrimination. The Trump administration needs to withdraw this proposed regulation and stop these attacks on LGBTQ people.”
Lambda Legal, which focuses on advancing LGBTQ rights through litigation, education, and public policy, echoed David’s sentiments and stressed that it’s important not to lose sight of which kinds of groups would benefit from the proposed rule.
“Given the conservative religious affiliations of many large institutional employers that seek federal contracts, we know the most vulnerable workers will be LGBTQ people, as well as Muslims, Jews, and other religious minorities,” the organization charged in a written statement.
The move follows numerous other actions the administration has taken against LGBTQ people on a variety of fronts. Trump and his inner circle of religious bigots have especially sought to chip away at the rights of transgender and gender nonconforming individuals, including the recent effort by the administration to remove Obamacare’s protections for transgender and gender nonconforming people.
Gay City News reported earlier this year about the administration’s disorganized effort to implement its ban on transgender service members. Some military branches have withheld details about the number of service members discharged thus far, while others have denied there had been any discharges.
On another front, Trump’s State Department in July embarked on a new effort to re-evaluate the nation’s role in human rights abroad in a move that signaled the administration’s willingness to pull back on America’s LGBTQ rights initiatives around the world.
The administration has also spread its anti-LGBTQ policies to schools, where Trump pulled away Obama-era rights of transgender students, and to adoption agencies, where the president has given exemptions to allow religious conservatives to reject LGBTQ parents.
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