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, didn’t respond to the Blade’s request for comment Wednesday about the draft “religious freedom” order.
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.”