Nationwide employment protections for the LGBT community still do not exist; in more than half the country people can be fired for their sexual orientation or gender identity — and they have been. It’s an issue of paramount importance to the community itself, which is why passing the Employment Non-Discrimination Act (ENDA) continues to be a top priority for the LGBT movment. ENDA, as written, is not perfect though, particularly because of its language creating exemptions for religious organizations.
During a “Situation Room” to discuss ENDA’s fate on Thursday, a heated debate took place about these broad religious exemptions and whether they’re necessary for the bill to pass. What’s most problematic is how much further they go than the protections found in Title VII, which includes protections based on race, gender, and national origin. In fact, the only exemptions Title VII offers is permission for religious organizations to discriminate “with respect to the employment of individuals of a particular religion,” allowing that belonging to a particular religion is a qualification for such jobs. Religious schools are similarly allowed “to hire and employ employees of a particular religion” if the religion directly manages the school or if its curriculum is “directed toward the propagation of a particular religion.”
Otherwise, the rest of Title VII applies. Thus, religious organizations are not exempt from the protections for race, sex, and national origin. However, under ENDA, as currently proposed, religious organizations would be free to discriminate based on sexual orientation and gender identity all that they wish. Here’s what ENDA’s exemption looks like:
This Act shall not apply to a corporation, association, educational institution or institution of learning, or society that is exempt from the religious discrimination provisions of title VII of the Civil Rights Act of 1964.
So, any organization that was free to discriminate based on religion would be free to discriminate against LGBT people too, but that means that this exemption would actually be even broader. Title VII’s religious exemption limits discrimination to employees who “perform work connected with the carrying on” of its religious activities. What ENDA proposes, however, is that the LGBT protections would not apply to any organization who might even qualify for Title VII’s exemption — for any of its employees. As Evan Wolfson argued during the “Situation Room” Thursday, this means a religious organization could “now fire not just the priest, but the janitor.” The ACLU has similarly raised “grave concern” that the exemption would extend to other entities like religiously-affiliated hospitals, creating a “two-tiered system” where LGBT discrimination is okay in those organizations when other discrimination is still not. Because some religious organizations do hold certain beliefs about LGBT people, a certain narrow exemption might be reasonably considered, but this particular language quite obviously goes too far.
The bill’s language about religious organizations, broad as it is, continues to be a sticking point for would-be supporters of ENDA, like Sen. Rob Portman (R-OH), who supports marriage equality, but is still concerned about “religious freedom” for employers. What’s telling though is that religious conservatives seek to justify anti-LGBT discrimination even without religious grounds to do so. For example, the Family Research Council has argued that even totally non-religious businesses should be able to fire transgender people just because they might make customers or other employees “uncomfortable.” Transgender people have already found relief under Title VII’s sex protections, but FRC’s point is still revealing. Rather than being about protecting “religious freedom,” the bill instead becomes a license to discriminate for all religious entities.
The broad exemption’s inclusion is a concession that discrimination against LGBT people is still justified and that the myths about LGBT identities that some religious people hold — such as that being gay is a choice and can be “fixed” by therapy — have merit. In addition, by conflating ENDA’s protections with Title VII’s allowances for religious discrimination, the bill invites religious organizations to erase LGBT people’s religious identities. As a perfect example, the Catholic Church continues to fire teachers from its schools — not because they’re not Catholic (they almost always are), but because they’re in a same-sex relationship. Ironically, ENDA as written would allow a chosen religious identity to trump an inherent sexual orientation or gender identity, guaranteeing in law that LGBT people are still second-class citizens.