Labor Department's new rule would let employers claim 'religious liberty' to ban gay people

The Department of Labor issued a proposed rule this week that gives any company that contracts with the federal government an absolute right to discriminate against LGBTQ people on the grounds of “religious liberty.”

Long a goal of religious conservatives, the rule applies to workplace discrimination and would mean that LGBTQ workers would have little to no protection against being fired simply because of their sexual orientation. The rule would also allow companies to refuse outright to hire LGBTQ people.

Approximately 28 million people work for companies that contract with the federal government. This is much broader than what people typically think of with the phrase “federal contractors.” Federal contract employees typically do work for the federal government but are employed by an outside agency to perform services such as working in a federal cafeteria. That figure is around 580,000 people.

This proposed rule, however reaches any corporation that does any business with the federal government.

For example, the rule would apply to a construction company hired to renovate a federal building. It would apply to any social service agency that provides services such as job training. It would apply to a defense contractor building a new plane for the federal government.

In short, the reach of the rule is staggering.

What the Trump administration proposes to do is to eliminate what is known as Title VII protections. Title VII of the Civil Rights Act prohibits discrimination against workers based on their “race, color, religion, sex, or national origin.” It means employers can’t fire workers for being black, or a woman, or Jewish, or because they’re from a country Trump hates, such as Iraq.

However, there’s long been a debate over whether prohibiting discrimination on the basis of sex includes being discriminated against based on sexual orientation. The Obama administration read that prohibition broadly and said “[d]iscrimination against an individual because of gender identity, including transgender status, or because of sexual orientation is discrimination because of sex in violation of Title VII.”

Because of that broad reading, in 2014, President Obama issued an executive order barring discrimination based on sexual orientation or gender identity by any company contracting with the federal government.

Religious conservatives, of course, howled at the move, saying it harmed their religious liberty. Their version of religious freedom, they say, compels them to discriminate against LGBTQ people. When Trump got elected, they saw their golden opportunity to overturn those protections.

With this proposed rule, they’re getting exactly what they wanted.

The executive summary of the rule co-opts the language of the civil rights movement to justify the administration’s anti-LGBTQ bigotry. It praises the “landmark Civil Rights Act of 1964” as signed by President Lyndon B. Johnson and notes the Act “prohibited discrimination on various grounds in many of the most important aspects of civic life.”

However, the language then shifts to focus exclusively on the fact that Title VII exempted “a religious corporation, association, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, or society of its religious activities.”

That’s an exemption that makes perfect sense. The Catholic Church can’t be forced to make a Presbyterian minister a bishop, for example, because the very nature of the Catholic Church requires its ministers to be Catholic.

Religious conservatives, though, have always wanted to radically expand the definition of “religious corporation, association, or society” to include private companies run by religious people. They’ve largely succeeded, in large part thanks to the Supreme Court’s 2014 decision in Burwell v. Hobby Lobby Stores, Inc. — the case that said certain employers can refuse to cover birth control for their workers on religious grounds.

That case, which dealt with birth control, expanded the definition of “religious employer” to include “closely held” commercial, for-profit companies. A closely held company is simply one where five or fewer people own the majority of the stock.

The new proposed rule relies a great deal on that Hobby Lobby decision. It says that the decision “forcefully rejected the argument that only nonprofit corporations can exercise religion.” Put another way, it meant that any private company owned by extreme religious conservatives could impose their religious beliefs on the people who work for them.

Since the new rule expands the Hobby Lobby analysis, all a company now has to do is to say that their religious beliefs are “sincerely held” and then they are allowed to fire — or refuse to hire — LGBTQ people.

The sweeping impact of this cannot be overstated. According to the administration’s figures, this rule could affect as many as 420,000 companies that do or have done business with the federal government. Any of those companies can now discriminate against LGBTQ people, all in the name of “religious freedom.”

The administration even argues that enshrining religious bigotry will result in “cost savings” to companies because they won’t have to worry about litigation when they discriminate against people based on their sexual orientation or gender identity.

Perhaps because of Trump’s patently ludicrous statement during the 2016 campaign that he would be a “real friend” to the LGBTQ community, the administration is trying to have it both ways. On the one hand, it’s giving an explicit green light to religious conservatives to discriminate against LGBTQ people. On the other hand, it’s absurdly claiming the move doesn’t negate “the President’s promise & commitment to the LGBTQ community.”

When he took office in 2017, Trump promised to keep Obama’s anti-discrimination law intact, but like so many other things Trump has said, that was an outright lie.

The only “promise and commitment” Trump has truly made to the LGBTQ community is to harm it at every turn. He barred transgender individuals from enlisting in the military. He’s proposed rolling back health care protections for transgender patients. He stopped the census from proposing to collect data on sexual orientation and gender identity.

Under Trump, the rights of LGBTQ people have been trampled. Because the Trump administration is in thrall to religious conservatives, this is only going to get worse.

Published with permission of The American Independent Foundation.