February 1, 2017 at 11:34 pm EST | by Chris Johnson
Draft Trump order would endorse sweeping anti-LGBT discrimination
A draft Trump order would enable sweeping anti-LGBT discrimination. (Blade file photo by Michael Key)

A draft Trump order would enable sweeping anti-LGBT discrimination. (Blade file photo by Michael Key)

Days after a White House statement that declared President Trump is “respectful and supportive of LGBTQ rights” and would preserve an Obama-era executive order against anti-LGBT discrimination, a new draft of an executive order has emerged that — if signed by Trump — would endorse sweeping anti-LGBT bias in the name of “religious freedom.”

First reported by The Nation and obtained by the Washington Blade, the four-page draft order has been circulating among federal advocacy organizations for days. It would allow persons and religious organizations — broadly defined to include for-profit companies — to discriminate on the basis of religious objections to same-sex marriage, premarital sex, abortion and transgender identity.

Invoking as authority the Religious Freedom Restoration Act and religious exemptions under federal civil rights law, the draft order instructs various federal agencies to allow persons and religious organizations to discriminate against LGBT people in the name of religious freedom.

“Religious freedom is not confined to religious organizations or limited to religious exercise that takes places in houses of worship or the home,” the draft order says. “It is guaranteed to persons of all faiths and extends to all activities of life.”

Chad Griffin, president of the Human Rights Campaign, said the order would enable “sweeping and dangerous” discrimination against LGBT people if Trump were to sign it.

“It reads like a wishlist from some of the most radical anti-equality activists,” Griffin said. “If true, it seems this White House is poised to wildly expand anti-LGBTQ discrimination across all facets of the government — even if he does maintain the Obama EO. If Donald Trump goes through with even a fraction of this order, he’ll reveal himself as a true enemy to LGBTQ people.”

The first portion of the order calls for a rule that would allow health insurers to opt out of preventive care for religious reasons, including preventative-care for women, STD or cancer screenings. The order also directs the Department of Health & Human Services to ensure individuals have access to health care plans that don’t cover abortion and don’t subsidize plans that provide such coverage.

The order also forbids the U.S. government from taking action against religious organizations that provide child-welfare services if those organizations decline to offer a service based on religious belief. Although no federal law currently prohibits adoption agencies from engaging in discrimination, that language in the order would essentially green-light the ability of adoption agencies to deny child placement with same-sex couples and discriminate against LGBT youth.

Another section is akin to the Russell Amendment, a measure Rep. Steve Russell (R-Okla.) inserted into the 2017 defense authorization bill, but congressional Republicans ultimately discarded. The order would allow federal contractors exemptions consistent with the Civil Rights Act of 1964 and the Americans with Disabilities Act. Since neither of those laws prohibit anti-LGBT discrimination, the amendment would allow these contractors to discriminate on the basis of sexual orientation or gender identity.

The next section forbids the Treasury Department from taking away the tax-exempt status from an institution — such as a religious school like Brigham Young University — for holding the position marriage is one man, one woman, gender is immutable based on biology or life begins at conception. The order forbids penalties for religious organizations for engaging in political speech, would seek to fulfill Trump’s campaign promise to undo the Johnson Amendment.

The general provisions section calls for rolling back “any rulings, directives, regulations, guidance, or interpretations” inconsistent with the order. That could lead to unraveling of pro-LGBT regulations of the Obama administration. Those regulations, to name a few, include the Department of Housing & Urban Development rule barring anti-LGBT discrimination in government-sponsored housing, the HHS rule ensuring transgender people have access to transition-related care and the USAID rule barring foreign assistance contractors from discriminating against LGBT people in providing services.

Roberta Kaplan, a lesbian New York attorney who successfully argued before the Supreme Court against the Defense of Marriage Act, said the executive order’s attempt to align the federal government with a particular religious view is “truly unprecedented.”

“Abortion has been listed in executive orders before, but never based on the so-called religious beliefs that life begins at conception,” Kaplan said. “So, it’s unprecedented for the government to be officially preferencing certain religious beliefs over others, and it definitely shares that with HB1523.”

That would mean the order may be struck down in court for violating the Establishment Clause, which was the basis of Kaplan’s argument leading to a federal court injunction against a “religious freedom” law in Mississippi enabling sweeping anti-LGBT discrimination.

The draft order was unearthed the evening before Trump is scheduled to speak at the National Prayer Breakfast, an annual event attended by social conservatives who may welcome the “religious freedom” order.

The White House didn’t dispute the veracity of the draft, but asserted it’s one of hundreds of circulating draft orders in the administration and may not reflect Trump’s thinking or intended policy.

“There are many versions of EOs of various topics floating around out there, nothing is valid or confirmed until they’re signed by the president,” White House spokesperson Stephanie Grisham said. “It’s important not to get ahead of things.”

The executive order is consistent with tweets from Washington Post columnist Josh Rogin and a Reuters report affirming the existence of a draft “religious freedom” order that would enable sweeping anti-LGBT discrimination.

The apparent draft emerges days after the White House declared Trump would “leave intact” an executive order former President Barack Obama signed in 2014 barring federal contractors from engaging in anti-LGBT workplace discrimination. But the draft executive order would, in fact, undercut the Obama-era order by allowing religious organizations and for-profit contractors to discriminate in the name of religious freedom.

Log Cabin Republicans, which lobbied to preserve the Obama-era order and praised Trump after the White House said he’d keep it, had no comment on the draft “religious freedom” order.

“If this is legit and if it’s signed, we’ll be issuing a statement,” Log Cabin President Gregory Angelo said. “For now I’m not going to comment on a supposed executive order that is still in draft form.”

Ian Thompson, legislative director for the American Civil Liberties Union, said the existence of the draft order demonstrates Trump’s pledge to keep the Obama order in place wasn’t the truth.

“This draft is chilling,” Thompson said. “Signing this EO would be a devastating attack on the rights and dignity of LGBT people and women. It would eviscerate the LGBT nondiscrimination protections that President Obama put into place for federal contractors in 2014. The statement from the Trump White House that those would be maintained appears to have been a lie.”

Rep. Jerrold Nadler (D-N.Y.) said in a statement the order is the latest in Trump’s “hateful attacks on the communities that comprise our nation” and condemned the measure.

“It has long been established that our constitution protects the free exercise of religion, but those protections do not create the right to cause harm to others,” Nadler said. “Protections for religious freedom must be shields to protect the practice of religion, not swords to enable one person to force his or her religious beliefs on others. No matter how sincerely held a religious belief may be, employers – including the federal government – must not be permitted to wield them as a means of discriminating against their employees or against those they serve.”

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

  • It has been said, This is Mike Pence on staroids.

  • Boy, Chris Johnson sure presumes a lot, doesn’t he? No one ever elected or even appointed him as any kind of spokesman for “the gay community,” whatever that is. Sorry folks, THIS gay man, who’s actively litigated and won several gay rights cases, doesn’t buy any of his or HRC’s ridiculously exaggerated claims against President Trump or any of his nominees. There ARE more important issues than gay rights, after all, and freedom of religion, like national security, is just one of them.

    • Would you have won them if this order existed? Or could the respondent had merely claimed they had a religious objection?

      • Yes, since they predated even Obama’s appearance in the IL House. In fact, if conversely, I recall engaging with some even-then haughty HRC types at one of their conclaves in the ’80s about the need to raise establishment clause arguments in gay rights litigation, only to be pooh-poohed by them – but ever-so-gently so as not to dissuade me from contributing to their outfit. (I didn’t then, and I haven’t since.) There are A LOT of us who were doing gay rights work LONG before “activists” – cf. arrivistes – showed up on the scene, and many of us do NOT agree with their Twisted approach of always asking for “more,” whether accompanied by a “Please, Sir” or not.

        • No – would you have won if this order existed when you went to court?

          And really – no need to spend your time talking HRC down in your answer. It’s not like I’m a fan. Quite the opposite.

          • Yes, because the issues were different: partner’s right to recover for emotional distress, sexual privacy, and right of elected gay GOPers to keep their seats on GOP county committee.
            Sorry I misunderstood your original ?, but “no apologies, no regrets” re: HRC. Nuff said?

          • HRC wasn’t the only organization. We also don’t all belong to a specific one. That doesn’t mean we don’t support the issues that HRC supports and advocates.

            Form your own organization on GLBT instead of whining about it!

        • Well those activist you bash stood up for the community during the AIDS crises when we had no legal protections at all and were marginalized by many. We helped get protections included in the ADA, we worked to defeat sodomy laws, integrate the US military, add protections for GLBT at the state level, achieved a hate crimes act and did much to achieve marriage equality.
          I was working on those issues since the early eighties myself and know how bad it was for us. Don’t lecture us on what you were doing in the shadows when we were risking ourselves being in the front lines when doing so could cost us dearly! You trying to now hijack the credit for the GLBT movement!

    • And someone appointed you the LGBT spokesperson instead? You’ve litigated and won gay rights cases, so what? You want an award? That gives you some kind of special insight over what will happen under the Trump Administration, in Congress or the states level that no one else has?

      He’s promised to support religious freedom laws and the FADA. He’s also said he’s going to destroy the Johnson Amendment. What makes you anymore authority or expert on Trump or his nominees than the rest of us? Are you sleeping with him?

      There are more important issues than GLBT rights and freedom of religion? Fine, go handle them since you obviously can’t chew gum and walk at the same time. Just get out of the way of those of us that feel these issues are just as important. GLBT rights are the communities national security!

  • No worries, the Log Cabin Republicans will use their considerable influence within the GOP to protect us. A second white paper perhaps and or how about another USA Today advertisement begging republicans to stop being meanies?

  • What is the USA coming to when it allows religion to ‘Trump’ the Constitution??
    Separation of Church and State has worked for all these years, why the change
    in practice now. Follow the old axiom, If it’s working why change it.

    • If “separation of church and state has worked for all these years”, then please explain how it is that laws restricting the civil rights of LGBT people have existed for all these years.
      No rational justification for such restrictions has ever emerged. That is how each restriction is, one by one, steadily repealed.
      The only “justification” for those laws is “the religion demands them”.
      No such separation has existed.
      The separation only truly takes hold once every last religious based law is removed, which is precisely what these lunatics are working to prevent.

    • The USA became a total joke last November.

  • If gays now-a-days really knew discrimination they would be counting their blessing not over reacting to a leaked memo.

    • This is the argument that gays should be happy with, and accept, nothing more than the meager scraps the homophobes have “permitted” them.
      We do not structure our lives on their terms. We structure our lives on our own terms.

  • I’m not shocked at any of the current proposed bills or drafts being circulated considering that (Gay Hater) Tony Perkins, president of the Vile anti-gay (FRC) family research council has been begging for ever for the far right republicans in congress to adopt his hate towards anyone that doesn’t fit his idea of a perfect Christian. That being said, I have felt for some time that president of the HRC, Chad Griffin, should’ve at the very least, attempted to reach out to president Trump to try to have an honest debate and possibly open up a positive dialogue. I’ve been a successful businessman most of my life and you don’t become a billionaire without having the ability to compromise. I’ve watched president Trump all my life and have read many great things about him before he ran for president, and the one thing I can say about him is that anyone who reaches out to him usually walks away with a mutual understanding and loyal trust. In my honest opinion I believe if the HRC would at least try to open a dialogue with president Trump it would be in the best interest of the entire gay community. Instead of playing to the gay communities deep seeded hate for anyone, including other gays, in order to make the gay community happy for unfounded beliefs, all gays would be better served if Chad Griffin reached out and attempted to make ally’s instead of enemies. I know for a fact that president Trump doesn’t hate gays and has many gay friends and employees many gays. If the HRC would request to meet with president Trump and explain what Tony Perkins and his ilk really stand for he’d listen. If we continue to lash out from the sidelines while satanic people like Tony Perkins continues to have a seat at the Trump table without opposition from the gay community at the very same table, only gives all anti gay hate groups a leading edge with their hateful point of view being the only option at that very important table. I’m a gay disabled veteran and I love America. I believe that the gay community deserves to be respected without discrimination. I along with many other gays believe that the majority of the gay community became very arrogant after winning the battle for marriage equality, not to mention the gay community literally stopped advocating for the many other rights that are needed. However, if we don’t start reaching out to the current administration we’re getting nowhere fast. Like it or not, complaining and hating others because we think they’re horrible gets nothing done.

    • How exactly do you propose to “try to have an honest debate” with a president who approaches EVERYTHING as though it is a zero sum game?
      The game theorist ALWAYS plays to win, and rejects ALL win-win situations.
      The USA has elected a president who insists that he wins and anyone he engages across the table must lose.
      There is no such thing as an “honest debate” with such people.
      At best all you can hope for is a tolerable level of subservience being imposed upon you.
      Which is precisely what the fight for LGBT rights has been against all along: We are NOT lesser beings, and we will NOT accept second class status.
      We are seeking equality, not an alternative lowly status.

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