Issue:  Vol. 48 / No. 11 / 15 March 2018

Advocates call Trump actions 'vicious'


President Donald Tump's administration has taken several actions seen by advocates as hostile to the LGBT community.
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In a one-two-three punch, the Trump administration last week announced that it would not honor an Obama era memorandum that said Title VII prohibits "sex-based considerations" by employers and announced two actions that seek to increase the ability of employers to cite "religious" or "moral" reasons for gender-based discrimination.

Meanwhile, the U.S. Senate Judiciary Committee voted October 5 to recommend the confirmation of a man opposed by 60 national and regional LGBT groups to serve as the top Department of Justice official on civil rights.

All four actions have significant implications for the rights of LGBT people.

"We have multiple indicators that the Jeff Sessions Department of Justice, and the Trump administration more broadly, intend to take every opportunity to limit non-discrimination protections for LGBT people," said Jennifer Pizer, law and policy director for Lambda Legal Defense and Education Fund.


The Title VII memo

In a two-page memorandum dated October 4, Sessions immediately withdrew an Obama era interpretation of "sex" in federal laws prohibiting sex discrimination. To some extent, the news was signaled ahead of time because DOJ briefs have already staked out this position in pending litigation. But Shannon Minter, legal director for the National Center for Lesbian Rights, said last week's memo represents a deliberate escalation of hostility between the administration and transgender people.

"This administration's vicious attacks on transgender people continue to escalate dangerously – first the withdrawal of protections for transgender students, then the military ban, and now DOJ's archaic position that Title VII does not protect transgender people," said Minter. "At every turn, the administration is stigmatizing transgender people and excluding them from basic civil liberties. This administration has put a target on the back of every transgender person in this country. Their goal seems to be to drive transgender people out of public life-out of schools, the military, and now workplaces."

In his memo, Sessions stated that Title VII does provide "various protections to transgender individuals," and he noted that Congress has passed "several" statutes (such as the hate crimes law) using the term "gender identity." But, he said, Title VII does not prohibit "discrimination based on gender identity per se."

"Although Title VII bars 'sex stereotypes' ... [it] is not properly construed to proscribe employment practices (such as sex-specific bathrooms) that take account of the sex of employees but do not impose different burdens on similarly situated members of each sex," the memo stated.

Title VII of the Civil Rights Act of 1964 prohibits private and government employers from taking adverse action against employees or potential employees "because of" a number of reasons, including the employee's "race, color, religion, sex, or national origin." In 2014, President Barack Obama's attorney general, Eric Holder, announced that the Department of Justice would, hence forth, argue that Title VII of the Civil Rights Act of 1964 also extends to prohibit gender identity discrimination.

But Devin M. O'Malley, a DOJ spokesman, said, "The Department of Justice cannot expand the law beyond what Congress has provided."

"Unfortunately, the last administration abandoned that fundamental principle, which necessitated [the October 4] action," said O'Malley. "This department remains committed to protecting the civil and constitutional rights of all individuals and will continue to enforce the numerous laws that Congress has enacted that prohibit discrimination on the basis of sexual orientation."

Pizer said the Title VII memo is "more a picture of what this administration evidently wants the law to be in the future than what the courts actually have held." It is, she said, "flagrant fantasizing that scores of important court decisions simply do not exist and that issuance of a two-page memo can make it so."

"Executive branch memos, of course, do not erase or rewrite court decisions," said Pizer. "What's grievously unfortunate, though, is that many employers and employees may be misled into believing the memo's mischaracterization of the law and may act accordingly, leading to increased, damaging discrimination – something we at Lambda Legal stand ready to oppose."


Religious liberty memo

The Religious Liberty Guidance, an eight-page October 6 memorandum with a 17-page appendix, also shows signs of the Trump administration expressing what it hopes the law will be, not necessarily what it is. The memo, also from Sessions, responds to an executive order President Donald Trump issued in May, when he asked Sessions to issue "guidance interpreting religious liberty protections in federal law." With that executive order, Trump also directed that his administration, "to the extent permitted by laws," respect and protect "religious and political speech," avoid "adverse" tax action against "any individual, house of worship, or other religious organization ... [that] ... speaks ... about moral or political issues from a religious perspective."

When that executive order was issued, LGBT legal activists were concerned that it was a signal to Trump's many conservative agency heads to use every opportunity to turn back progress achieved by the LGBT community in the past decade.

The guidance issued Friday identifies 20 principles, some of which are an impassioned paraphrase of existing constitutional provisions, such as number nine, "government may not interfere with the autonomy of a religious organization," and number 16, "Title VII ... prohibits covered employers from discriminating" against individuals on the basis of their religion.

But other points misstate the law or present it as only some people would probably like it to read. For instance, point four states that "individuals and organizations do not give up their religious-liberty protections by providing or receiving social services ... by seeking to earn or earning a living ... or by otherwise interacting with federal, state, or local governments."

That reading of the law ignores various U.S. Supreme Court decisions that have identified instances in which limits can be placed on an individual's exercise of religion. For instance, when Bob Jones University claimed its whites-only admission policy was based on a "genuine belief," the Supreme Court in 1983 upheld the Internal Revenue Service's denial of the Christian university's tax-exempt status. In 1990, in Employment Division v. Smith, it ruled, "the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability ..." In that case, plaintiffs sought exemption from laws banning the use of peyote.

NCLR's Minter called the religious liberty guidance "deeply concerning."

"While much of the guidance merely restates existing law, some provisions cross dangerous lines that create an unprecedented vulnerability for LGBT people and other minority groups," said Minter. "The guidance endorses the novel view that ordinary commercial businesses can claim religious exemptions to anti-discrimination laws, that federally funded social service agencies can discriminate, and that religious exemptions are permissible even when they cause harm to third parties.

"None of this bodes well for LGBT people and other groups whose ability to participate equally in our society depends on anti-discrimination laws," said Minter.

Lambda Legal's Pizer said the guidance appears to be fashioned to satisfy a political demand.

"What leaps off the page first is that many of the topic headings read like religious right activist talking points, though the explanatory [appendix] text underneath often is qualified or nuanced to be much more accurate legally," said Pizer. "It looks like the document's top purpose is satisfying a political demand even more than reshaping policy."

And while the administration of President George W. Bush tried to change rules to enable more religious organizations to receive federal funding, said Pizer, "This guidance is night-and-day different in its shockingly explicit elevation of religious desires to discriminate over other people's rights to be protected from discrimination, and in its selective reading of the law and use of inflated rhetoric when doing so."


Birth control policy shift

Causing the most stir nationally last week was the announcement of new regulations, effective immediately, that reverse a mandate under the Affordable Care Act that employers provide health insurance coverage for birth control. The new regulations say employers, by claiming a religious or moral objection, may refuse to cover birth control.

The document, entitled "Moral Exemptions and Accommodations for Coverage of Certain Preventive Services Under the Affordable Care Act," indicates the change will apply to the U.S. departments of Treasury; Labor; and Health and Human Services.

"These interim final rules," noted the rules, "expand exemptions to protect moral convictions for certain entities and individuals whose health plans are subject to a mandate of contraceptive coverage through guidance issued" by the ACA.

The rules are to appear in the October 13 Federal Register. Comments will be accepted until December 5 and can be submitted at

Lesbian Massachusetts Attorney General Maura Healey was the first state official to respond to Trump's new rules. Healey filed suit October 6, the same day the administration released its rules. The lawsuit says, "Congress declined to include a 'conscience amendment' in the ACA that would have permitted employers, insurers, and others to deny coverage based upon religious beliefs or moral convictions."

Although Trump's new rules "do not provide any exemption or accommodation for employers with religious or moral objections to other medical services," stated the lawsuit, they "do not serve an important governmental objective sufficient to justify the gender-based discrimination."

"Significant numbers of Americans have religious-based objections to a range of medical services and procedures, and to medical care in general," noted the lawsuit. But Trump's rules will cause "substantial harm" to women and violate the First Amendment establishment clause and other constitutional provisions.

"These radical positions seem almost designed to exacerbate social tensions and intra-group hostilities and to leave our country even more divided than it already is," said Minter. "Now, more than ever, we need leaders who can bring people together, but this administration seems intent on driving every wedge that it can."

Meanwhile, the Senate Judiciary Committee voted 11-9 last week, along partisan lines, to recommend the confirmation of Eric Dreiband to serve as head of the DOJ's Civil Rights Division.

In an October 4 letter to the committee, the heads of 62 LGBT groups said Dreiband has an "overwhelmingly anti-civil rights record" and that his "personal involvement in cases seeking to diminish the rights of LGBT people and other vulnerable communities strongly suggests that he will continue to promote the anti-civil rights agenda of this administration ..."

Among other things, Dreiband represented the University of North Carolina in its effort to enforce a since-repealed state law banning transgender people from using a public bathroom that is consistent with their gender identity. He also represented employers seeking to claim religious exemptions from providing birth control coverage in their health insurance plans.


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