Trump Administration Expands Anti-LGBTQ 'License to Discriminate' Rule

The Trump administration's days are numbered, but it's going out with a bang by broadening a policy that lets federal contractors discriminate against people who offend their religious beliefs, including LGBTQ+ people.

The U.S. Department of Labor's Office of Federal Contract Compliance Programs issued a final rule Monday expanding the scope of contractors that may claim a religious exemption from employment nondiscrimination policies, which ban discrimination based on sexual orientation and gender identity, along with many other characteristics. The rule was previously understood to apply only to faith-based nonprofit organizations, allowing them to prefer to employ members of their faith, but the changes allow for-profit companies to claim the right to discriminate against those who do not follow the ownership's religious tenets.

In revising the rule, the DOL cites Supreme Court decisions such as Burwell v. Hobby Lobby,which allowed for-profit companies to deny contraceptive coverage for employees because of religious objections, and Masterpiece Cakeshop v. Colorado Civil Rights Commission, which vacated the commission's finding that Masterpiece's owner had illegally discriminated against a gay couple when he refused to create a wedding cake for them. The commission, the court said, had shown insufficient respect for the owner's religious beliefs.

These cases show the need for updating the rule because "government at times has been callous in its treatment of religious persons," the rule states.

"Religious organizations should not have to fear that acceptance of a federal contract or subcontract will require them to abandon their religious character or identity," Secretary of Labor Eugene Scalia said in a press release. (Scalia is the son of the late Supreme Court Justice Antonin Scalia, well known for his anti-LGBTQ+ views.)

Civil rights organizations quickly denounced the new rule, which is likely to be revoked by the incoming Joe Biden administration, but in the meantime would allow discrimination against LGBTQ+ people, single parents, people seeking contraceptive services, or members of different faiths (or none at all).

The rule also makes it harder to challenge discrimination. In at least some instances, employees will no longer be able to go to both the Office of Federal Contract Compliance Programs and the Equal Employment Opportunity Commission to file complaints -- they must go only to the EEOC. "This, in essence, closes a possible avenue for enforcement," Alison Gill, vice president for legal and policy at American Atheists, told The Advocate. The group objected strongly to the new rule, as did Americans United for Separation of Church and State.

LGBTQ+ groups condemning the move include Lambda Legal and the Human Rights Campaign. "It is hard to overstate the harm that the Office of Federal Contract Compliance Programs is visiting on LGBTQ people, women, religious minorities, and others with the sledgehammer it is taking to federal nondiscrimination protections," Jennifer Pizer, director of law and policy at Lambda Legal, said in a prepared statement. "For nearly 80 years, it has been a core American principle that seeking and receiving federal tax dollars to do work for the American people means promising not to discriminate against one's own workers with those funds. This new rule uses religion to create an essentially limitless exemption allowing taxpayer-funded contractors to impose their religious beliefs on their employees without regard to the resulting harms, such as unfair job terms, invasive proselytizing and other harassment that make job settings unbearable for workers targeted on religious grounds.

"The Department of Labor has crafted a grotesquely overbroad exemption that will be used by many federal contractors as a totally improper, catch-all defense to discrimination complaints. The rule allows contractors, including large for-profit companies, to use the special treatment designed for religious organizations if they merely 'affirm ... a religious purpose in response to inquiries from a member of the public or a government entity.' This adds yet another gaping hole to the Swiss cheese the Trump administration has been systematically making of our country's essential civil rights protections."

"There are almost 4 million employees who work for federal contractors, including another 1.6 million who work for federal grantees impacted by this rule," Lambda Legal Senior Attorney Sasha Buchert added. "Already, from one-third to one-half of the 8.1 million LGBTQ employees nationwide report facing discrimination on the job. This rule effectively allows almost any federal contractor to claim a right to fire a person, deny health benefits or take other forms of discriminatory action for marrying a same-sex partner or coming out as transgender, or who the employer or would-be employer discovers is transgender, for living in accordance with their gender identity. The harm to those who already face pervasive discrimination is incalculable."

"Within its final weeks, the Trump-Pence administration has chosen to prioritize gutting existing protections for LGBTQ people, women and religious minorities," HRC President Alphonso David said in a press release. "This action by the administration is blatantly offensive, unnecessary and simply unacceptable, which is further compounded by the fact that they are attempting to jam it through a lame-duck session. Since taking office, the administration has worked around the clock to dehumanize and demean LGBTQ people all while misrepresenting the law to justify creating a license to discriminate against people including on the basis of gender identity and sexual orientation.

"The people have spoken and they want pro-equality leadership -- the Trump-Pence administration must withdraw this flawed, dangerous final rule and stop their attacks on LGBTQ people. Should they not, the Human Rights Campaign is prepared to work alongside the incoming Biden-Harris administration to overturn this discriminatory regulation and ensure that the employees of federal contractors have a workplace free from discrimination."