What would an LGBT Discrimination Executive Order Mean

Executive Order Under Consideration by Trump Administration Would Allow Discrimination Against LGBT People

fadaPresident Trump is considering issuing an executive order that provides sweeping protections for employers and service providers that discriminate against LGBT people.  The draft of the executive order circulated on February 1, 2017, would prohibit the federal government from withholding grants, contracts, or federal benefits from entities that discriminate against LGBT employees or beneficiaries based on religious objection—a belief that being LGBT is immoral or inconsistent with religious doctrine.

Such an executive order could potentially impact thousands of same-sex couples seeking to adopt or foster children, tens of thousands of LGBT youth in foster care, and hundreds of thousands of LGBT workers employed by federal contractors and the federal government.

Same-Sex Couples Seeking to Adopt or Foster Children

The draft executive order would allow federally-funded religious organizations providing child welfare services to decline adoption and foster services to same-sex couples.  Williams Institute research shows that many same-sex couples adopt and foster children, and are more likely to do so than different-sex couples.

Same-sex couples are four times more likely to be raising adopted children, and six times more likely to be raising foster children, than different-sex couples in the U.S. An estimated 22,000 adopted children are being raised by 16,000 same-sex couples, and an estimated 3,400 children are being fostered by same-sex couples.

The draft executive order could limit opportunities for family formation among same-sex couples, and leave many children without a foster placement or permanent home.

LGBT Youth in Foster Care

The draft executive order would allow religious organizations providing child welfare services to decline to serve LGBT youth.  Williams Institute research finds that LGBT youth are greatly over-represented in the foster system. For example, in Los Angeles, LGBT youth make up 20 percent of the youth population in care, compared to only 8 percent of the general youth population.

LGBT Federal Employees and LGBT Employees of Federal Contractors

The draft order would open the door for harassment and discrimination against LGBT people who work for the federal government.  An estimated 64,000 LGBT people are federal civil service employees.

Federal Contractors employ over 20 percent of the U.S. workforce – 28 million people.  Under an executive order issued by former President Obama in 2014, federal contractors are prohibited from discriminating against their employees based on sexual orientation or gender identity.  President Trump’s draft order would limit the scope of the 2014 order, allowing contractors to discriminate against LGBT employees based on their religious beliefs without losing their contracts.

The draft order would potentially strip an important source of legal protections for many LGBT workers of federal contractors, including workers who are not otherwise protected from discrimination under state non-discrimination laws or corporate policies.

The Williams Institute estimated that as a result of the 2014 executive order, 11 million workers, including 400,000 LGBT employees, gained protections from discrimination based on their sexual orientation and gender identity.  These 11 million employees did not have protections from sexual orientation and gender identity discrimination under a corporate policy or state law before the 2014 order was issued.

Services Provided to Same-Sex Couples and Access to Health Care

The draft order would open the door for denial of services and discrimination against same-sex couples, including over 500,000 married same-sex couples in the United States.  The draft order would also limit federal regulations that protect LGBT people from discrimination in health care, including in services provided by hospitals, insurers, and other entities.  There are over 10 million LGBT adults in the United States.   In particular, 1.4 million transgender adults would be vulnerable to discrimination in health care and denial of services under the draft order.

First Amendment Defense Act (FADA) Would Be ‘Devastating’ for LGBTQ Americans

 Earlier this month, Senator Ted Cruz of Texas and Senator Mike Lee of Utah, through his spokesperson said they plan to reintroduce an embattled bill that barely gained a House hearing in 2015. But this time around, they said, the First Amendment Defense Act (FADA) was likely to succeed due to a Republican-controlled House and the backing of President-Elect Donald Trump.
fadawould prohibit the federal government from taking “discriminatory action” against any business or person that discriminates against LGBTQ people. The act distinctly aims to protect the right of all entities to refuse service to LGBTQ people based on two sets of beliefs: “(1) marriage is or should be recognized as the union of one man and one woman, or (2) sexual relations are properly reserved to such a marriage.”
Ironically, the language of the bill position the right to discriminate against one class of Americans as a “first amendment” right, and bans the government from taking any form of action to curb such discrimination—including withholding federal funds from institutions that discriminate. FADA allows individuals and businesses to sue the federal government for interfering in their right to discriminate against LGBTQ people and would mandate the Attorney General defend the businesses.

FADA was first filed in the House and Senate in 2015, but was met with protests from Democrats and resulted in just one House hearing amid concerns that Obama would veto the bill. It is currently co-sponsored by 171 House Republicans and just one Democrat (Daniel Lipinski of Illinois.)

State-level legislation similar to FADA has failed in recent years, usually resulting from lawsuits and nationwide boycotts. When Vice President-elect Mike Pence passed a “religious freedom” bill as governor of Indiana in March 2015, it was met with protests, financial losses from businesses that pulled operations from the state. It ultimately required an amendment issued in April to protect LGBTQ people from the bill’s discrimination.

Mississippi’s HB 1523 is nearly identical to FADA. The state law, passed in 2016 but quickly blocked by a judge, allows people and businesses in the state to refuse service to LGBTQ people based on three sets of religious beliefs: “Marriage is or should be recognized as the union of one man and one woman; sexual relations are properly reserved to such a marriage, and male (man) or female (woman) refer to an individual’s immutable biological sex as objectively determined by anatomy and genetics at time of birth.”

A lawsuit brought by Mississippi religious leaders alleges the state law actually violates religious freedom by determining that religious belief necessitates anti-LGBTQ discrimination. The group of ordained ministers suing the state said in the lawsuit, Barber v. Bryant, that Mississippi violates its right to freedom of religion “because persons who hold contrary religious beliefs are unprotected—the State has put its thumb on the scale to favor some religious beliefs over others.”

Barber v. Bryant is currently at the Fifth Circuit Court of Appeals after a federal trial court ruled HB 1523 violates the federal Equal Protection and Establishment Clauses. Pizer said the case stands as an example of the legal explosion that would occur in reaction to FADA.

“If Congress were to pass the federal FADA as currently written, and the next president were to sign it into law, I’m confident heads would spin at how fast the constitutional challenges would fly into court,” Pizer said, adding “we’re likely to have a great many allies because these attempts to misuse religion for discrimination offend enormous numbers of Americans who cherish both religious liberty and equality for all.”