May 4, 2017 – Today, HRC condemned Donald Trump’s Executive Order which, among other things, gives Attorney General Jeff Sessions discretion to create a #LicenseToDiscriminate in agencies across the federal government.
HRC Legal Director Sarah Warbelow said, “Donald Trump just let the fox into the hen house. Through this Executive Order, Trump has directed Attorney General Jeff Sessions — a man who has denied LGBTQ people equality under the law — to seek a license to discriminate across all areas of the government. This order is incredibly alarming, particularly for millions of LGBTQ people and women across the nation who are among those most frequently subjected to discrimination under the guise of religion. We are watching and we will challenge any effort by Jeff Sessions or other agencies of Trump’s Administration to license discrimination.”
Donald Trump’s Executive Order instructs the Attorney General to provide guidance to all agencies on “interpreting religious liberty protections in Federal law.” This sweeping approach could result in an unprecedented expansion of religious exemptions affecting employment, services, and programs. Revisiting federal law, including regulations and policies, will almost certainly have significant implications for LGBTQ people. In essence, the executive order punts the question of how and where the administration will permit discrimination against LGBTQ people to Jeff Sessions, a man who has consistently denied LGBTQ people equality under the law.
Anti-LGBTQ officials have long sought to exempt themselves from their legal obligations by demanding special rights to discriminate based on their “religious views.” Based on Sessions’ long career of doing exactly this, he is will almost certainly seek to apply a fundamentalist interpretation of the Religious Freedom Restoration Act (RFRA) to areas of the law that were not implicated in Hobby Lobby as well as potentially treating closely held for-profit corporations as religious organization throughout federal law.
Some of LGBTQ protections that may be undermined include:
- HHS could be ordered to amend the 2011 Hospital Visitation regulations ensuring that same-sex spouses and designated partners have access to their loved ones if they are hospitalized. This rule was adopted following a series of tragic cases of discrimination in which same-sex spouses and partners were kept away from sick and dying partners simply because of their sexual orientation. This executive order could require HHS to implement damaging religious exemptions that would allow hospitals to turn away these family members based on the hospital’s religious beliefs — leading patients to die alone.
- HUD could be required to amend the 2011 Equal Access Rule, which ensures that everyone seeking HUD-funded housing including emergency shelters and public housing are served fairly regardless of their sexual orientation or gender identity. Under this rule, emergency shelters receiving federal funding can no longer turn someone back to the streets just because of who they are. Today’s executive order could require expansive religious exemptions that would allow federal dollars to fund shelters that adopt formal policies refusing to recognize marriages of same-sex couples or the gender identity of transgender people.
- In the federal workplace, anti-LGBTQ speech and actions may be accommodated without fear of reprisal.
- For example, the Social Security Administration could adopt a policy allowing workers to refuse to process spousal or survivor benefits paperwork for a surviving same-sex spouse. They could be allowed to refuse to process a benefits application for the couple’s children, including a simple application for a Social Security card.
- Employees at the Department of Veterans Affairs could refuse to process paperwork for a surviving same-sex spouse and their family also citing religious objections to same-sex marriage.
- Internal Human Resource officers at federal agencies could also be allowed to refuse to process a federal worker’s application for spousal health insurance coverage for a same-sex spouse.
- Federal workers would also be allowed to refuse to use gender appropriate pronouns and names of transgender co-workers without fear of reprisal.
- The State Department could be required to include a religious exemptions for private businesses contracting with the U.S. Agency for International Development (USAID) to provide services including healthcare, nutrition support, and education. This would allow organizations receiving federal funds and representing the U.S. abroad to turn away LGBTQ people because of their beliefs on same-sex marriage and relationships or transgender people.
The Executive Order is also aimed at undermining critical preventative health care for all women, including lesbian, bisexual, and transgender women. This provision will also have consequences for transgender men. Access to quality reproductive and health care services is essential for LGBTQ women and transgender men. Laws restricting access to care and limiting outreach and education to our community directly impact the well-being of LGBTQ women and transgender men of all ages. Like straight women, lesbian and bisexual women and transgender men of every age utilize contraception for various healthcare needs including the prevention of pregnancy and family planning, as well as for the treatment of medical conditions like endometriosis, polycystic ovarian system (PCOS), migraines, and painful or irregular periods.
The preventive care mandate currently requires insurance providers (employers) to provide coverage for preventive care and screenings. Preventive care includes:
- Well-woman visits
- Screening for gestational diabetes
- HPV testing
- Counseling for STIs
- Counseling and screening for HIV
- Contraceptive methods and counseling
- Breastfeeding supplies and support
- Screening and counseling for interpersonal and domestic violence
Under the executive order an employer could refuse to provide health insurance coverage for any of these services citing religious belief of “conscience.” HRC is deeply concerned that employers will feel entitled to refuse coverage for:
- Routine cancer screenings and mammograms for transgender women
- LBTQ women suffering from intimate partner violence because of their belief against same-sex marriage
- Contraception to all employees, including those who are LGBTQ, or restrict access to coverage to individuals in opposite-sex marriages