Following the release of new regulations from the Trump administration with the stated intent of protecting the religious freedom of federal grantees, LGBTQ groups and the White House locked in a dispute over whether they enable anti-LGBTQ discrimination.
Although the White House is denouncing the criticism as partisan bias, the LGBTQ advocacy groups are able to point to specific language in the regulations that would inhibit LGBTQ people from obtaining social services from religious-affiliated grantees.
President Trump unveiled the new regulations Thursday at an event in the Oval Office in observance of National Religious Freedom Day, which he called “something very important and very special, and special to me and the people that are gathered around me.”
“Tragically, there is a growing totalitarian impulse on the far-left that seeks to punish, restrict, and even prohibit religious expression,” Trump said. “Something that, if you go back 10 years or 15 years or 20 years, it was un-thought of that a thing like that could even happen — that anybody would even think of something like that happening.”
The triage of new measures coming from the Trump administration are 1) Regulations from nine federal agencies lifting regulations requiring religious-affiliated federal grantees to inform individuals seeking their service of secular alternatives; 2) Guidance affirming First Amendment protections for teachers and students to pray in schools; and 3) An Office of Management & Budget memo ensuring religious organizations are eligible for federal grants consistent with the Supreme Court’s 2017 decision in the Trinity Lutheran case.
It’s the first of these measures — the regulations relaxing standards for religious-affiliated federal grantees — that has invoked the ire of LGBTQ rights advocates. The nine agencies from which the regulations came down are the Justice Department, the Department of Agriculture, the Labor Department, Department of Homeland Security, the Department of Veterans Affairs, the U.S. Agency for International Development, the Department of Health & Human Services, the Department of Education and the Department Housing & Urban Development.
Those measures, LGBTQ advocates said, are the latest in series of efforts from the Trump administration to green-light refusal of services to LGBTQ in the name of religious freedom.
The nation’s leading LGBTQ advocacy group, the Human Rights Campaign, also came out swinging in the statement asserting the new regulations would “roll back existing protections for LGBTQ and other people seeking government services and benefits.”
“The right to believe and to exercise one’s faith is a core American value. The right to discriminate with taxpayer dollars is not,” HRC President Alphonso David said. “These regulations would dismantle meaningful protections for beneficiaries of these federally funded programs and strip away basic notice requirements designed to ensure that beneficiaries know their rights to be free from discrimination and their right to an alternative, non-religious provider. Taxpayer funds should not be used to allow discrimination.”
Heather Weaver, senior staff attorney with the ACLU Program on Freedom of Religion & Belief, said in a statement the American Civil Liberties Union plans to “submit comments vigorously opposing these proposed regulations.”
“We will keep saying this as long as we have to: Religious freedom is a fundamental right, but it does not confer a license to discriminate,” Weaver said. “Government-funded programs, including those operated by faith-based organizations, should not be able to discriminate against vulnerable people seeking help.”
It wouldn’t be the first time the Trump administration has relaxed pro-LGBTQ non-discrimination requirements imposed during the Obama administration for recipients of federal contracts or contracts in the name of religious freedom.
In the last year alone, the Department of Labor has proposed a rule that would allow federal contractors to invoke a religious exemption to discriminate against LGBTQ people in employment; HUD proposed a change allowing homeless shelters to refuse to place transgender people consistent with their gender identity over religious objections; and HHS proposed a rule eliminating non-discrimination requirements for federal grantees, including taxpayer-funded adoption agencies seeking to refuse child placement into LGBTQ homes.
Also condemning the latest Trump administration religious freedom measure was Rep. Mark Takano (D-Calif.), one of seven openly gay members of the U.S. House, in his capacity as co-chair of the Congressional LGBT Equality Caucus.
“Once again, the Trump administration is trampling on religious freedom and endangering the lives of the LGBTQ community,” Takano said. “This harmful proposal to repeal crucial non-discrimination protections at faith-based organizations that receive taxpayer funding will prevent LGBTQ individuals from obtaining much-needed social services.”
White House accuses LGBTQ groups of partisan bias
White House Deputy Press Secretary Judd Deere, however, denied in a statement to the Washington Blade the latest regulations enabled discrimination, criticizing LGBTQ groups for condemning the measures as anti-LGBTQ simply because they seek to enhance religious freedom.
“Are these the same groups who function more like a campaign arm of the Democratic Party and have refused to credit the president with any action he’s taken to protect LGBTQ Americans?” Deere said. “The president believes in human dignity for all and that no one should be discriminated against, including religious organizations and the LGBTQ community. These actions today build on President Trump’s longstanding commitment to responsibly safeguard the fundamental right to religious freedom by eliminating unfair and unequal treatment by the federal government.”
The new regulations, a Trump administration official said, don’t disturb any existing non-discrimination requirements in the law that apply to federal grantees because they’re not allowing or addressing a situation in which a beneficiary is denied services.
The Obama regulations, the official said, required religious providers to notify every potential beneficiary who walked in the door that if the fact that the organization is religious made them uncomfortable, the religious organization would recommend a secular provider. That is what was taken down, the official said, in the latest Trump proposal.
In response, the ACLU’s Weaver insisted the new regulations do, in fact, enable anti-LGBTQ discrimination, primarily through deleting the requirement that there be a secular option available in order for a social services program to be designated as “indirect aid.”
Typically, indirect providers of social services, Weaver said, have a lot of leeway to include religious activities in their programming and can impose religious requirements in obtaining services. In contrast, Weaver said direct providers are required to adhere to regulations, such as LGBTQ non-discrimination requirements.
Previously, those indirect providers, Weaver said, would have to provide secular alternatives to individuals, but under the Trump administration regulations, both the need for secular alternatives and the need for indirect providers to notify individuals of those alternatives are no more.
“This means that these religious providers can effectively turn away LGBTQ people and religious minorities who do not agree to submit to religious activities and messages, and (because of the change to the definition of indirect aid) there need not be a secular provider available to help them,” Weaver said.
The regulations also enable anti-LGBT discrimination, Weaver said, in other ways. Although religious organizations are allowed to favor co-religionists in hiring practices, Weaver said the regulations broaden that exemption to allow a government-funded entities to discriminate against LGBTQ workers and job applicants.
Further, Weaver pointed to language in the Department of Education regulation allowing universities to allow religious-affiliated student groups to select their own leaders despite campus-wide non-discrimination requirements, which she said is “another way in which LGBTQ discrimination is promoted.”
Robin Maril, associate legal director at the Human Rights Campaign, said the religious freedom measures are anti-LGBTQ because they “undo all of the good protections” instituted under the Obama administration.
The regulations, Maril said, would not only undo requirements for religious-affiliated providers to offer information about secular alternatives, but also the requirement they notify individuals they need participate in the religious component of their programming.
Further, Maril said the regulations may force individuals to participate pointed to language which states federal grantees “may require attendance at all activities that are fundamental to the program,” which she called “insane.”
“I can totally see where they’re coming from — that protections still exist, because they do — but then it undermines safeguards and protections that gave them life,” Maril said.
As an example of cases where religion has been used to justify discrimination, Maril pointing to the Harris Funeral Homes case before the U.S. Supreme Court, which involves an employer who claimed a religious reason in firing funeral director Aimee Stephens for being transgender, and challenges to the Anchorage non-discrimination ordinance on religious grounds.
“People are arguing basically recognizing the existence of transgender people violates a religious belief,” Maril said. “I don’t see how this see does not enable this kind of discrimination.”
The White House didn’t respond to a request to comment when the Washington Blade presented the particular concerns of the LGBTQ groups.
Anti-LGBTQ groups pleased with new Trump regs
If one measure of determining whether or not a religious freedom measure is anti-LGBTQ is testing out it pleases anti-LGBTQ groups, the results would come out as a “yes.”
Tony Perkins, president of the anti-LGBTQ Family Research Council, said Trump is “taking on the bullies” in a statement largely focused on the new regulation ensuring teachers and parents can pray in schools.
“With this and his other announced rules, President Trump is continuing the drumbeat of religious freedom and the long march toward restoring religious freedom in the public square,” Perkins said. “No doubt, his announcement today will further galvanize both the attention and support of people of faith.”
Also hailing the measure was Michael Farris, CEO of Alliance Defending Freedom, who said the new regulations were based in part on the anti-LGBT legal firm’s victory in the Trinity Lutheran case.
“Religious freedom is the headwaters of all freedoms, and we’re grateful that President Trump and his administration have taken numerous opportunities to acknowledge and protect it for all people and organizations of faith,” Farris said. “Unfortunately, some states and local government officials continue to treat religious organizations as second class citizens, and discriminate against them in government programs.”
Meanwhile, LGBTQ groups maintain their opposition to religious freedom regulations, saying they demonstrate the need for a change at the White House.
Rea Carey, executive director of the National LGBTQ Task Force, condemned the regulations at the same time her organization was hosting its annual Creating Change conference, which this year is taking place in Dallas, Texas.
“The stated reason for the new rules is to ‘remove burdens’ on providers, but serving women, people of color, religious minorities and LGBTQ people is not a burden,” Carey said. “Instead, these rules reinforce the power of people with privilege at the expense of people who have been marginalized. Our communities no longer expect better from this administration, yet every time Trump attempts to remove support from those who need them most, it causes both tangible and psychological harm.”