News

ENDA’s religious exemption still concerning as vote nears

Brown says religious exemption should be same for LGBT workers as other categories

Published

11 years ago

November 3, 2013

Sen. Sherrod Brown believes the religious exemption in employment discrimination law should be the same for LGBT workers as with other categories (D-Ohio) (Photo public domain).

Shortly after filing cloture on the Employment Non-Discrimination Act, Senate Majority Leader Harry Reid (D-Nev.) held a 30-minute conference call with Nevada LGBT leaders late Thursday in anticipation of the bill coming to the Senate floor this week.

Among those on the call was Derek Washington, lead organizer for the LGBT group GetEQUAL Nevada, who said he raised with Reid concerns about ENDA’s religious exemption.

That language would provide leeway for religious institutions, like churches or religious schools, to discriminate against LGBT workers in non-ministerial positions even if ENDA were to become law. It’s broader than similar exemptions under Title VII of the Civil Rights Act of 1964 for categories of race, gender, religion and national origin.

“I mentioned to him that it was something that just was not palatable,” Washington said. “I asked him what he felt about it, and he felt that the main thing to do was get the vote taken care of, and then deal with it later. As often times happens, you don’t get something perfect the first time around, you go back and fix it later, so that was basically his take on it.”

That account was corroborated by Faiz Shakir, a Reid spokesperson, who said the Democratic leader understands the concerns, but wants to get the bill passed first, then go back and address the exemptions.

“Sen. Reid’s first priority is to pass the strongest possible legislation which can garner 60 votes,” Shakir said. “He believes the current legislation meets that test.”

Washington was unfazed by Reid’s response that the religious exemption won’t see change before passage, insisting the Nevada Democrat is one of the greatest champions for the LGBT community, noting, among other things, he was the first elected official to endorse the National Equality March in 2009.

“I think it would a shame to write a story about any of this without mentioning that that man is a hero to us, and I don’t think people get that,” Washington said.

That symbolizes the situation with narrowing the broad religious exemption in ENDA before the Senate approves the bill. Despite concerns that it’s too expansive, the idea of limiting it at this time — such as the amendment process — isn’t getting a lot of traction either from LGBT advocates or lawmakers.

Instead, those with concerns over ENDA’s religious exemption have more modest aspirations: Get LGBT friendly lawmakers in the Senate to speak out against the language on the Senate floor.

Ian Thompson, legislative representative for the American Civil Liberties Union, is among those saying he’s not seeking an amendment to religious exemption on the Senate floor, but wants the provision addressed in some way.

“By doing that, it’s certainly our hope more and more pro-equality members of Congress and their staff will come to understand the potential harm of the current exemption, and I think we’ll see growing support for narrowing it moving forward,” Thompson said.

Thompson added he’s “definitely hopeful” that senators will speak out against the exemption of the floor, but declined to name any prospects for who would articulate concerns.

Heather Cronk, co-director of GetEQUAL, said her organization “didn’t anticipate” being able to change the religious exemption, but is looking for senators to speak out against the language.

“What we were hoping for for — which hasn’t happened yet because the senators haven’t gone to the floor yet — is for some of the more progressive senators to speak out from the floor against the religious exemption,” Cronk said. “So, we’ll wait and see what happens on the floor to see if we get those statements.”

GetEQUAL has petitioned four senators with a reputation for being champions of progressive values — Sens. Kirsten Gillibrand (D-N.Y.), Elizabeth Warren (D-Mass.), Sherrod Brown (D-Ohio) and Al Franken (D-Minn.) — to speak out against the religious exemption. As of Sunday, the petition has just under 6,000 signatures.

It remains to be seen whether any senator will speak out in favor of limiting the religious exemption when ENDA comes to the Senate floor this week. Of these four senators, the only office who responded to the Washington Blade’s request to comment on the extent of the religious exemption was that of Brown.

Meghan Dubyak, a Brown spokesperson, said the senator’s focus is passing is ENDA, although he shares the belief the religious exemption for LGBT discrimination should be the same it is for other categories.

“Sen. Brown’s top priority is overcoming a likely filibuster and ensuring passage of ENDA,” Dubyak said. “He believes the religious exemption in ENDA should be consistent with the federal law that currently protects people against discrimination.”

In July, Gillibrand said during a Third Way event that said she’d go even further and amend ENDA to remove the religious exemption. However, her staffers have apparently backtracked from that statement as they’re now mum on the issue.

For its part, the White House is staying out the argument over the religious exemption. Shin Inouye, a White House spokesperson, reiterated in an email weeks ago President Obama supports ENDA, but is leaving the details to Congress.

“We look forward to lawmakers moving forward on this bill that upholds America’s core values of fairness and equality,” Inouye said. “While we defer to Congress on the specifics of the legislation, we believe lawmakers will be able to find a balance that protects LGBT workers and religious liberty.”

Since the introduction of ENDA this year, the ACLU has called for narrowing the religious exemption along with groups like GetEQUAL, the National Center for Lesbian Rights, Lambda Legal and the Transgender Law Center, the National Gay & Lesbian Task Force.

On the other hand, groups working on like Freedom to Work, the Human Rights Campaign and the Center for American Progress have endorsed the current exemption in ENDA.

Tico Almeida, president of Freedom to Work, co-wrote the religious exemption currently found in ENDA while working as a House staffer in 2007. Neither he nor HRC responded to multiple requests to comment for this article.

Winnie Stachelberg, vice president of external affairs for the Center for American Progress, said the religious exemption is necessary to enable bipartisan support to move the bill forward.

“The current religious language reflects a bipartisan compromise that represents a pragmatic balance between ensuring that LGBT workers have the protections they need and organizations,” Stachelberg said. “While the religious exemption is broader than other civil rights statutes it will ensure that LGBT workers have the protections they need.”

If anything, the movement in the Senate on ENDA’s religious exemption this week may be more toward expanding it even further.

Sen. Rob Portman (R-Ohio), seen as a potential supporter of ENDA, has said he’s behind the basic premise of the legislation, but has concerns about restrictions on religious liberties and wants to strengthen the bill to ensure they’re protected.

Prior to the committee vote on ENDA in July, Sen. Rand Paul (R-Ky.) had prepared an amendment that would replace the bill’s religious exemption with more comprehensive language for religious employers. It was never brought up before the committee. Paul’s office didn’t respond to a request to comment on whether the senator would introduce the amendment on the Senate floor.

Concerns over the existing religious exemption were ramped up last month when Tippi McCullough, formerly a teacher for 15 years at Mount St. Mary Academy in Little Rock, Ark., was forced to resign after the school learned she had married her same-sex partner in New Mexico. Because the school is a religious institution, it would not be subject to liability under ENDA.

Thompson said the consequences of passing ENDA with its current exemption in place are hard to predict, but said it would be “a dramatic, and from our view, and very troubling expansion of an exemption like this in our federal civil rights law.”

“I think that it wouldn’t be too into the future before we saw instances of employment discrimination occurring against workers who should be protected from employment discrimination and may find out that because the scope of the existing religious exemption that they may not be,” Thompson said.

LGBT advocates who oppose the religious exemption chose their words carefully about whether they want to see ENDA passed this year with the current language — as opposed to letting it die in Congress so that it could be passed with a narrow exemption at a later time.

Thompson said the ACLU has been a “longtime champion of ENDA” because of the protections in the bill “are critically important and long overdue.”

“We’ve endorsed it, so that’s a position that we’ve taken,” Thompson said. “We have consistently, also though, raised concerns about the scope of the religious exemption and said that that is should be appropriately narrowed ultimately before it ends up on the president’s desk, and that’s our view, but at the same time because of the protections that it would afford to LGBT people are so important and so needed, we also support the bill.”

Cronk said GetEQUAL neither supports nor opposes the bill and believes “any time that that pro-LGBT legislation comes up in Congress, we want that legislation to move forward.”

“Our organizers didn’t feel good about organizing in support of the bill because there wasn’t that change to the religious exemption and because the grassroots network we work with feel the impact of that everyday,” Cronk said. “They work in hospitals in the closet, or they teach at schools where they’re in the closet, and they have a really clear sense about who would be left behind by this legislation, and didn’t feel that was in line with our vision.”

Kenya

Outcome of transgender rights case in Kenya remains uncertain

Country’s attorney general has asked High Court to dismiss lawsuit

Published

4 hours ago

March 21, 2025

Sam Kisika

(Image by Bigstock)

Transgender Kenyans’ efforts to receive birth certificates that reflect their gender identity now hang in the balance, despite several legal victories.

Attorney General Dorcus Oduor has asked the High Court to dismiss a pending case that three trans people have filed. Oduor argues a person is born either “a boy or a girl” and existing laws do not allow for anyone to change their sex in adulthood.

Oduor in her written submission to Justice Bahati Mwamuye also argues gender identity and the government’s issuance of a birth certificate are based on a person’s physical appearance. Her argument, however, exempts intersex people.

The government last month officially recognized intersex people in a Kenya Gazette notice that said they can receive birth certificates with an “I” gender marker. The country’s historic intersex rights law took effect in 2022.

“The existing laws of the land do not contemplate change of gender, and marks of transgender are not a basis for determining one’s gender as either male or female,” Oduor states.

Oduor further maintains that a person’s feeling they are “unwillingly living in a wrong body” cannot justify changing their gender. Oduor maintains a person’s gender is based on fact — not feelings — and the plaintiffs at birth were registered and named based on their gender status.

Audrey Mbugua, Maurene Muia, and Arnest Thaiya are the three trans people suing Oduor, the Registrar of Births and Deaths, the National Registration Bureau, and Immigration Services Director General Evelyn Cheluget in order to receive amended birth certificates.

The plaintiffs argue the current discrepancy in crucial documents — birth certificates, national identification cards, and passports — has denied them opportunities and rights. They disagree with Oduor’s position on determining one’s sex, arguing the process is “not scientific, but subjective.”

“There are no identifiers of sex or definitions of the biological or psychological components of sex,” the plaintiffs argue. “In any event, such biological components cannot be limited to genitalia only, but also chromosomes, gonads, hormones, and the brain.”

They further maintain that trans people cannot be forced to live with names of the wrong gender as adults. Oduor, however, maintains that only mistakes, such as spelling errors or parents in ID documents, can be changed and not a gender marker.

Amka Africa Justice, Jinsiangu (“my gender”) Kenya, and the Kenya Human Rights Commission are among the advocacy groups that have joined the case.

Mbugua, a well-known trans activist, has been pushing for legal rights in the court for more than a decade.

She filed a lawsuit in which she demanded the government identify her as a woman and to be allowed to live as one, not as a male as she was registered at birth. A landmark ruling in 2014 ordered the Kenya National Examinations Council to change Mbugua’s name and replace the gender marker on her academic certificates.

Mbugua also founded Transgender Education and Advocacy, a group with more than 100 members. A long court battle that ultimately proved successful allowed Transgender Education and Advocacy to become the first publicly-funded trans rights organization in Kenya.

Transgender Education and Advocacy’s initiatives include offering legal aid to trans people seeking to change their names, photos, and gender markers in documents, pushing for legal reforms to end discrimination based on gender identity and expression, and providing economic assistance to trans people who want to overcome poverty and sexual exploitation.

Jinsiangu Kenya, established in 2018, also champions equal access to health care and other basic services without discrimination based on gender identity and expression.

A report that Jinsiangu Kenya released in July 2021 notes 63 percent of trans people surveyed did not have ID documents or records with gender markers that coincide with their gender identity. The report also notes 10 percent of trans people surveyed said officials denied them an ID card or passport, and they were unemployed because they did not have the proper documents.

Japan

Japan’s marriage equality movement gains steam

Nagoya High Court this month ruled lack of legal recognition is unconstitutional

Published

8 hours ago

March 21, 2025

Ankush Kumar

Since 2019, the advocacy group Marriage For All Japan has sued the Japanese government in all five district courts. (Photo courtesy of Marriage For All Japan)

Japan’s Nagoya High Court on March 7 ruled the lack of legal recognition of same-sex marriages violates the country’s constitution.

The plaintiffs argued Japan’s Civil Code and Family Registration Act, which does not recognize same-sex marriages, violates the country’s constitution. They cited Article 14, Paragraph 1, which guarantees equality under the law and prohibits discrimination based on factors that include race, creed, sex, or social status. The plaintiff also invoked Article 24, Paragraph 2, which emphasizes that laws governing marriage and family matters must uphold individual dignity and the fundamental equality of the sexes.

The plaintiffs sought damages of 1 million yen ($6,721.80) under Article 1, Paragraph 1, of the State Redress Act, which provides for compensation when a public official, through intentional or negligent acts in the course of their duties, causes harm to another individual. The claim centered on the government’s failure to enact necessary legislation, which prevented the plaintiff from marrying.

The court noted same-sex relationships have existed naturally long before the establishment of legal marriage. It emphasized that recognizing such relationships as legitimate is a fundamental legal interest connected to personal dignity, transcending the confines of traditional legal frameworks governing marriage and family.

The court further observed same-sex couples encounter significant disadvantages in various aspects of social life that cannot be addressed through civil partnership systems. These include housing challenges, such as restrictions on renting properties, and financial institutions refusing to recognize same-sex couples as family members for mortgages. Same-sex couples also face hurdles in accessing products and services tailored to family relationships. While the court deemed the relevant provisions unconstitutional, it clarified that the government’s failure to enact legislative changes does not constitute a violation under the State Redress Act.

The lawsuit, titled “Freedom of Marriage for All,” brought together a large coalition of professionals, including more than 30 plaintiffs and 80 lawyers. They filed six lawsuits in five courts throughout Japan.

“We filed these lawsuits on Valentine’s Day, Feb. 14, 2019, in Tokyo, Osaka, Nagoya, and Sapporo, and in September of that year in Fukuoka,” noted Takeharu Kato, director of Marriage for All Japan. “Then, in March 2021, the Sapporo District Court handed down the first ruling declaring the current laws unconstitutional, which received extensive worldwide media coverage. Subsequently, the Osaka District Court unfortunately ruled that the current law is constitutional, but among the 10 rulings handed down so far, nine have ruled that not recognizing marriage equality is unconstitutional.”

Kato is a lawyer who is part of the legal team in the Sapporo case. He is also a board member of Marriage for All Japan, a marriage equality campaign.

“The MFAJ (Marriage for All Japan) is fully supporting the lawsuits by publicizing the current status of the trials and the rulings in our websites and social networks, setting up press conferences at the time of the rulings,” Kato told the Washington Blade. “We also make the best of the impact of the lawsuits in our campaign by holding events with the plaintiffs of the lawsuits and inviting them to the rally at Diet (the Japanese parliament) members’ building.”

Kato said the campaign has significantly shifted public opinion, with recent polls indicating more than 70 percent of Japanese people now support marriage equality — up from approximately 40 percent before Marriage for All Japan launched. He also noted 49 percent of Diet members now back marriage equality.

Japan is the only G7 country that does not legally recognize same-sex couples. Taiwan, Nepal, and Thailand have extended full marriage rights to gays and lesbians.

Expressing disappointment, Kato said many Japanese politicians continue to resist marriage equality, despite overwhelming public support. Kato added Marriage for All Japan expects the Supreme Court to rule on their lawsuits in 2016.

“We believe that the Supreme Court will also rule that the current laws are unconstitutional,” he said. “However, the Supreme Court’s ruling alone is not enough to achieve marriage equality under the Japanese legal system. We should put more and more strong pressure on the Diet to legalize marriage equality in Japan as soon as possible.”

Several municipalities and prefectures issue certificates that provide limited benefits to same-sex couples, but they fall short of equal legal recognition.

Prime Minister Fumio Kishida’s government has faced mounting pressure on the issue as public support for marriage equality has surged in recent years. Kishida has yet to push reforms within his own party; encountering fierce opposition from its traditional leadership.

His government in June 2023 passed Japan’s first law addressing sexual orientation and gender identity, aiming to “promote understanding” and prevent “unfair discrimination.” Activists, however, widely criticized the legislation on grounds it fails to provide comprehensive protections or extend marriage rights to same-sex couples.

Virginia

Pride Liberation Project announces additional Va. school board protests

Student-led group challenging Trump-Vance administration’s anti-LGBTQ policies

Published

8 hours ago

March 21, 2025

Jaylon Curry-Hagler

LGBTQ students demonstrate at Luther Jackson Middle School in Falls Church, Va., in June 2023. (Washington Blade photo by Michael Key)

Following their recent protests at school board meetings in Virginia to challenge the Trump-Vance administration’s anti-LGBTQ policies, a student-led rights group on Wednesday outlined plans to continue their actions.

The Pride Liberation Project released a statement in early March announcing their “March Month of Action” after their first round of protests. The Pride Liberation Project on Wednesday issued another press release that provided additional details.

“Queer students will rally at local school board meetings across Virginia, as they call for education leaders to reject the Trump-Musk’s administration escalating attacks against queer people.” said Conifer Selintung on behalf of the Pride Liberation Project. “Since taking office, the Trump-Musk administration has ignored the real issues facing our schools — like declining reading scores and the mental health crisis — and tried to bully queer students into the closet. Alongside other hateful attacks, they’ve attacked nondiscrimination protections, banned gender-affirming care, and whitewashed history.”

The Pride Liberation Project press release also included a statement from Moth, an LGBTQ student at McLean High School.

“I want to be able to go to school as myself, just like any other student,” said Moth. “To do that, I need my school board to stand up to bullies.”

The Pride Liberation Project has also released a schedule of rallies it plans to hold this month.

The first rally took place at the Prince William County School Board meeting in Manassas on Wednesday. A second event took place at the Roanoke County School Board meeting on Thursday.

Additional rallies are scheduled to take place in Rockingham and York Counties on March 24, Loudoun County on March 25, and Fairfax County on March 27.