In their first year in office, President Donald Trump and Attorney General Jeff Sessions have taken a number of actions, including issuing an executive order, a memorandum, a court brief, and planning documents, that increase the likelihood that LGBT people will experience discrimination in health care and at the hands of social service providers, private businesses, and government officials. These actions will also likely increase employment discrimination against LGBT people. Combined with the Trump Administration’s systematic rollback of nondiscrimination regulations and interpretations of civil rights laws that provide some legal protections against anti-LGBT discrimination, these moves threaten to undermine progress made in recent years to expand access to culturally competent, affirming health care for LGBT people, and to reduce anti-LGBT discrimination.
Since religious conservatives’ U.S. Supreme Court victory in Burwell v. Hobby Lobby Stores, Inc. (2014)—upholding a company’s refusal to cover contraception in an employee health plan—and the two pro-same-sex marriage Supreme Court rulings in 2013 and 2015, religious conservatives have introduced a slew of state and federal bills that frame refusal to serve LGBT people and/or same-sex couples as the Constitutionally-guaranteed “free exercise” of religion. Laws adopted in Mississippi and Tennessee allow health care providers to refuse to serve LGBT people and same-sex couples. Altogether 10 states have religious refusal laws, and similar legislation may be introduced into the 115th Congress. These bills threaten to exacerbate existing discrimination in health care, and undermine efforts to reduce LGBT health disparities and improve access to culturally competent care.
In September 2017, the U.S. Department of Health and Human Services released a draft strategic plan which made no mention of LGBT health disparities, as the previous one did, but mentioned “faith” or “faith-based” organizations more than 40 times. The plan stated that HHS will implement President Trump’s May 2017 Free Speech and Religious Liberty Executive Order, and “affirmatively accommodate” “the exercise of religious beliefs and/or moral convictions by persons or organizations partnering with, or served by, HHS…” It also called for a greater role for faith-based organizations in delivering cultural competency trainings.
Attorney General Jeff Sessions’ October 2017 Religious Liberty memo also echoed religious refusal language:
…to the greatest extent practicable and permitted by law, religious observance and practice should be reasonably accommodated in all government activity, including employment, contracting, and programming.
…individuals and organizations do not give up their religious-liberty protections by providing or receiving social services, education, or health care; by seeking to earn or earning a living; by employing others to do the same; by receiving government grants and contracts; or by otherwise interacting with federal, state, or local governments.
[T]he federal government may not condition receipt of a federal grant or contract on the effective relinquishment of a religious organization’s hiring exemptions or attributes of its religious character. Religious organizations…may not be required to alter their religious character to participate in a government program…nor effectively to relinquish their federal statutory protections for religious hiring decisions.
Clearly Sessions believes that religious organizations should be able to receive federal government funding to provide health care and other services and to discriminate in service provision and hiring.
An October 2017 Request for Information from HHS reiterated the Administration’s view that religious organizations could receive funding from HHS to provide health care and other services, even if they discriminate in providing care and services and in hiring based on their religious views.
The Department of Justice stated in a friend of the court brief submitted in the Masterpiece Cake Shop case now before the U.S. Supreme Court that, while there is a compelling federal government interest in prohibiting racial discrimination by a private business, there is no compelling interest in prohibiting anti-gay discrimination. In addition, DOJ has reversed an Obama Administration regulation prohibiting some anti-LGBT discrimination in health care, as well as prior DOJ and federal court determinations that federal sex discrimination laws prohibit anti-transgender discrimination and some forms of anti-gay, lesbian and bisexual discrimination.
In the absence of a federal nondiscrimination law that explicitly prohibits discrimination on the basis of sexual orientation and gender identity, these Trump Administration actions will increase discrimination against LGBT people and same-sex couples in health care, social services, public accommodations, employment, and possibly interactions with government officials. Such regulations and laws clearly violate the “equal protection of the laws” and due process rights guaranteed by the U.S. Constitution. By favoring some religious beliefs and practices over others and over the rights of nonbelievers, religious refusal executive branch actions also violate the spirit of the Establishment Clause of the First Amendment. Unfortunately the Trump Administration is filling the federal courts with judges who will not uphold these important Constitutional principles. We must all oppose executive branch actions that enable and authorize discrimination against LGBT people.