In , the Department of Justice adopted the position that employment discrimination based on gender identity is a violation of Title VII of the Civil Rights Act of , which prohibits employment discrimination based on sex. Yet gains made in recent years have triggered aggressive backlash from opponents of LGBT equality, halting or reversing some recent advances.
In February , the Trump Administration withdrew the guidance prohibiting discrimination against transgender youth in US schools, arguing that the issue should be left to the states to resolve. In July , it filed a brief adopting the stance that Title VII does not cover discrimination based on sexual orientation, and in October , it issued a memorandum concluding that it also does not cover discrimination based on gender identity. As LGBT rights come under renewed assault at the federal level, they have also come under attack in state legislatures.
Hundreds of anti-LGBT bills were filed in the and state legislative sessions. In recent years—and particularly as marriage equality gained ground in state and federal courts—proponents of exemptions have drafted bills and filed lawsuits that would exempt people who say that their religious or moral convictions are irreconcilably at odds with what generally applicable anti-discrimination laws require of them in some circumstances.
In many instances, lawmakers have proposed laws to prevent the government from denying funding, licenses, contracts, and other forms of support to service providers who discriminate based on religious or moral beliefs.
In , lawmakers introduced federal legislation that would be far more expansive than existing safeguards for religious liberty. In , lawmakers introduced another religious exemption bill at the federal level that specifically pertains to child welfare providers.
If passed, the Child Welfare Provider Inclusion Act would prohibit the federal government and state governments that receive federal funding from declining to work with child welfare agencies that discriminate based on religious beliefs or moral convictions. At the state level, lawmakers in and introduced dozens of bills that would create sweeping exemptions for religious believers in various areas. As bans that prevented LGBT people from adopting children have been lifted in every state, some adoption and foster care providers who disapprove of same-sex relationships have sought exemptions that would permit them to decline service to same-sex couples.
And as federal agencies and professional organizations have sought to ensure that LGBT people are able to access medical care without discrimination, some mental and physical healthcare providers have sought exemptions that would permit them to turn away LGBT clients or decline to provide services they consider objectionable. As noted above, Human Rights Watch is aware of at least eight states that had enacted such exemptions into law prior to the legislative session.
These laws are often couched in the rhetoric of religious liberty. Yet they are a stark departure from the approach that has typically been used to balance the rights of religious adherents with the generally applicable laws that protect the rights, safety, health, and welfare of others.
Typically, religious exemptions offer a narrow, defined exception to a generally applicable law. When lawmakers have afforded more general protection to religious exercise, they have done so by balancing that protection with the rights and needs of others—for example, allowing the government to enforce generally applicable laws when it has a compelling reason to do so and only burdens religious exercise to the narrowest extent possible.
Recent license-to-discriminate laws break from that tradition. They do not create a nondiscrimination rule; instead, they only create the exemption allowing discrimination to flourish. And rather than strike any kind of careful balance between assertions of religious liberty and LGBT equality or other rights and values that could be at stake, many grant a nearly unfettered license to discriminate while brushing aside the rights and freedoms of others.
On both fronts, most of these laws bear no resemblance to religious exemptions that are motivated by a concern for human rights and are narrowly drawn to respect the rights of all involved.
The religious exemptions that have been considered or enacted by state legislatures take different forms. Some are comprehensive, providing blanket protection for entities that do not wish to provide various services to LGBT people because of their religious or moral beliefs.
Others are more narrowly circumscribed, focusing particularly on adoption and foster care services and physical and mental healthcare services.
Few of the states that have enacted these laws have protections in place that prohibit discrimination based on sexual orientation and gender identity. In this context, these laws function first and foremost as a license to discriminate, signaling that discrimination against LGBT people is acceptable in the state.
The framing and scope of these exemption laws differ in many respects, but are alike in several fundamental ways. First, they are motivated to a large degree by hostility to recent advances in LGBT equality; on their face they invoke only a concern for religious liberty but the public debate around and legislative history of many of these laws show quite clearly the animus and the discriminatory intent that underpin them.
Second, they permit blatantly discriminatory practices without clear limitations or meaningful safeguards. They do not strike a careful balance—or even suggest that any serious attempt was made to do so—between religious exercise and the purposes of the underlying law from which the exemption is carved out, a feature of rights-respecting approaches to religious exemptions. Third, they often show no regard whatsoever for the harms that the discrimination they legitimize might inflict on those who are turned away from a range of important services and for the nondiscrimination principle itself.
These laws are directly harmful, and they take on added importance because of the larger message they send. By enacting these laws, states send a clear signal that discrimination against LGBT people is permissible—and that message has serious consequences at a time when discrimination against LGBT people remains all too common in the United States.
Proponents of exemptions that allow for anti-LGBT discrimination have framed them in terms of religious liberty, foregrounding how these laws might exempt businesses and service providers from laws and regulations that they find objectionable.
The assumption seems to be that the resulting harms to LGBT individuals, or to the core value of equality, are insubstantial. As detailed below, however, the exemptions come at a high price. To understand the harm, it is important to look at the larger context in which such laws are being considered, including pre-existing anti-LGBT discrimination and how exemption laws can encourage such discrimination, particularly in states without nondiscrimination protections.
Anti-LGBT religious exemption laws are likely to exacerbate mistreatment because, both on their face and in the political discourse that surrounds them, they tend to legitimize and signal official acceptance of discrimination against LGBT people. Already, LGBT people often face discrimination by service providers who deny them goods and services. Where discrimination against LGBT people is permitted, because nondiscrimination laws do not exist, these problems tend to be worse.
The following pages describe the tangible, human impact of such discrimination—which will likely worsen as a result of religious exemption laws—on the people who bear the brunt of it. Leiana C. After the incident, Leiana and her wife gave up on the process for more than a year, fearing similar treatment from other providers. It was not until a lesbian friend recommended a doctor whose services she had used that they decided to try again. The couple are now the parents of a three-year-old, and Leiana is pregnant with their second child.
Tanya P. At the time, her daughter was already obtaining that treatment, had socially transitioned, and was seeing a therapist. Nonetheless, her pediatrician refused to provide a letter stating that information, citing his religious beliefs:. One pediatrician in Alabama recounted various difficulties that patients had encountered with providers who refuse care on religious grounds. Discrimination can take the form of: obvious acts of prejudice and discrimination e. Resilience in the face of change: stories of transmen Families like mine Wingmen — for gay guys, by gay guys Report discrimination Helpful contacts and websites Multicultural people Personal stories The Invisible Discriminator.
Stay in touch with us Sign up below for regular emails filled with information, advice and support for you or your loved ones. Sign me up. Your session is about to expire. Even if the Equality Act passed the House and Senate Majority Leader Mitch McConnell could be persuaded to bring the bill up for a vote in the Republican-controlled Senate, the measure would likely face contentious hearings. As transgender Americans have become more visible, that attention has helped rally support for the community.
But that visibility has also made them a target, advocates say. During a recent debate in a House committee about the reauthorization of the Violence Against Women Act, Republicans focused on trying to remove provisions that had been added to protect transgender people, such as a measure that could require prisons to house transgender individuals in facilities that match their gender identity. In recent years, arguments about religious freedom have been also levied at attempts to shore up protections for LGBT people.
The Trump Administration, for example, sided with a Colorado baker who refused to make a cake for a same-sex wedding because he felt the act violated his religious beliefs. A long list of companies has come out in support of the measure, arguing that any discrimination is bad for business. But the perceived clash of rights has also proved a rallying cry for the socially conservative base. LGBT rights groups countered by releasing studies that attempt to show the extent of discrimination that people face.
Among the most vulnerable are transgender people. Furthermore, homophobia and discomfort with individuals who do not conform to antiquated stereotypes of sex and gender often manifests into heinous discrimination against these individuals. Although federal laws protect people from workplace discrimination on the basis of sex, race, national origin, religion, age, and disability, there is no federal law that specifically outlaws workplace discrimination on the basis of sexual orientation by private employers.
However, over the years, there has been more legal support for finding that Title VII's prohibition against "sex" discrimination also covers sexual orientation discrimination. The reasoning is that sexual orientation discrimination necessarily involves gender-based stereotypes of how men and women should behave and with whom they should be in romantic relationships.
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