June 19, 2014 | by Chris Johnson
Will Obama’s job bias order include a religious exemption?
GetEQUAL, Employment Non-Discrimination Act, ENDA, White House, President Obama

GetEQUAL members gathered outside the White House on Feb. 10 to urge President Obama to sign an ENDA executive director. (Washington Blade photo by Michael K. Lavers)

On the day of a scheduled meeting at the White House about a proposed LGBT non-discrimination executive order for federal contractors, supporters are insisting the measure not allow for continued discrimination at religious organizations.

Ian Thompson, legislative representative for the American Civil Liberties Union, said any executive order from Obama must omit exemptions for religious organizations.

“Simply put, this EO must apply, without exception, to all federal contractors,” Thompson said. “Taxpayer-funded discrimination is antithetical to our laws and basic American values. When a religiously affiliated organization makes the decision to request a taxpayer-funded contract with the federal government, it must be required to play by the same rules as every other federal contractor.”

On Monday, immediately after the White House announced President Obama intends to sign an executive order barring anti-LGBT job discrimination among federal contractors, concerns about a potential religious exemption in the measure emerged — along with arguments both for and against such language.

On one side, Heather Cronk, co-director of GetEQUAL, said exemptions would create “gaping holes” in a non-discrimination executive order, but on the other, Sen. Orrin Hatch (R-Utah), one of 10 Republicans in the Senate who voted for the Employment Non-Discrimination Act, said the executive order “must include the same religious protections” as ENDA, which includes a broad exemption, to ensure religious freedom.

In response to inquiries from the Washington Blade, LGBT advocates made clear they don’t want to see a religious exemption in the executive order or won’t accept an exemption beyond what has been afforded under the existing Executive Order 11246 to other protected groups — including race, religion, gender and national origin. That order was signed by President Johnson in 1964.

Mara Keisling, executive director of the National Center for Transgender Equality, said in response to an inquiry about objections to a religious exemption in the planned LGBT order that companies receiving federal funds should be barred from anti-LGBT discrimination.

“NCTE applauds President Obama on taking action to end LGBT job discrimination in federal contracting,” Keisling said. “It’s been something we’ve been working on for a long time. And NCTE believes that federal contractors who receive federal funding should not be allowed to discriminate.”

The religious exemption has already been an issue in the LGBT community with the Employment Non-Discrimination Act, legislation that would bar anti-LGBT bias among public and private employers, not just federal contractors.

To secure bipartisan support for the bill, the legislation includes a religious exemption that is more expansive than the one for other categories of workers under the Title VII of the Civil Rights of Act. Unlike protections for other groups under current law, passage of ENDA would still allow religious organization, such as religious schools or hospitals, to continue to discriminate against LGBT workers.

While many national LGBT groups — the Human Rights Campaign, the National Gay & Lesbian Task Force, Freedom to Work and the ACLU, to name a few — continue to support ENDA even with the current exemption to extend LGBT non-discrimination protections in the workplace, other national groups — GetEQUAL, the National Center for Lesbian Rights and the Transgender Law Center — say they won’t support the bill because the religious exemption is too broad.

Shannon Minter, legal director for the National Center for Lesbian Rights, issued a similar warning that any executive order must exclude a religious exemption that is broader than it is for other groups under the existing executive order.

“We are confident the executive order will be principled and provide LGBT workers with the same protections given to others,” Minter said. “We are grateful to the president for moving this forward. We oppose the issuance of any executive order or any legislation that provides a discriminatory exemption for LGBT employees broader than the exemption for other protected groups.”

Executive Order 11246 actually does contain a religious exemption of sorts. In 2002, President George W. Bush amended 11246 to exempt any contractor that is a religious organization for the purposes of employing individuals of a particular religion. That effectively permitted religiously affiliated organizations contracting with the U.S. government to discriminate in hiring based on religion, but not on any other protected basis, such as race, color, sex or national origin.

Ilona Turner, legal director for the Transgender Law Center, said the LGBT executive order must be free of any language that will allow religious organizations receiving federal contracts to continue to discriminate.

“We are confident that the forthcoming Executive Order will apply, without exception, to all federal contractors,” Turner said. “Taxpayer-funded discrimination violates our laws and fundamental values. When a religiously affiliated organization makes the decision to request a taxpayer-funded contract with the federal government, it must be required to play by the same rules as every other federal contractor. That includes not making employment decisions based on who someone is or who they love.”

The executive order is acting as a unifier of sorts for national organizations that held differing views on whether to continue to support ENDA with its current religious exemption. Each group with whom the Blade spoke insisted the directive be free of any such language or consistent with the existing executive order.

Fred Sainz, vice president of communications for the Human Rights Campaign, insisted the protections in the LGBT order be the same as they are for other groups under Executive Order 11246, despite his organization’s continued support for ENDA with the current religious exemption.

“We believe that when taxpayers funds are being used, the federal government should prevent discrimination,” Sainz said. “LGBT workers should be treated the same as other categories already protected by the existing executive order.”

But not every group took the opportunity to speak out against a religious exemption in the executive order. Freedom to Work, one of the groups that is building Republican support for ENDA based on its broad religious exemption, didn’t respond to multiple requests for comment on whether the executive order should contain similar language.

Even if the executive order were to contain a religious exemption, such a move would seem to have little impact on allowing continued discrimination. Sources have told the Washington Blade that religious organizations, such as religious schools and religious organizations, are not among the businesses that would contract with the federal government.

LGBT sources familiar with the White House say they expect the executive order to include both sexual orientation and gender identity, and unlike protected categories under Executive Order 11246, it won’t include an affirmative action provision that would apply to sexual orientation or gender identity.

Unknown is whether the measure would be an amendment to the existing executive order or a new directive. One advocate said the measure would be a standalone because the administration doesn’t want the affirmative action provisions in Executive Order 11246 to apply to LGBT people. Another said it’s entirely possible to include in the existing executive order sexual orientation and gender identity without affirmative action applying.

The timing for when Obama would formally sign the order and when it would be fully implemented is also unknown. Late on Wednesday, a White House official said he had no details to share about the specifics of an executive order.

More information about the executive order is likely to emerge during the meeting on Thursday, which is scheduled to begin at 4:30 p.m. In addition to discussing the executive order, the White House is set to provide an update to the administration’s implementation of the U.S. Supreme Court decision against the Defense of Marriage Act. The identities of the participants in the upcoming meeting yet aren’t public.

Rea Carey, executive director of the National Gay & Lesbian Task Force, also said the executive order must not include exemptions for any kind of federal contractor.

“The executive order should transparently and unequivocally tackle discrimination against LGBT employees of federal contractors — no exceptions and no special exemptions,” Carey said. “The alternative would be taxpayers’ money being used to practice discrimination, the very thing that this executive order is designed to help end.”

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

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