Kentucky Gov. Matt Bevin and his Republican peers in the state legislature want to make certain that students in public schools can discriminate against LGBTQ kids.
So even though the states’ civil rights laws already fail to protect LGBTQ people, the governor — who declared 2017 the “Year of the Bible” — signed a religious freedom bill that will effectively let students cite their religious beliefs as a reason to discriminate.
The law, SB17, is meant to protect religious expression in school, generally adding all sorts of protections to this end — in reaction to a school cutting a Bible verse from a production of “A Charlie Brown Christmas.”
One of the provisions in SB17 also lets student groups discriminate against would-be members: “No recognized religious or political student organization is hindered or discriminated against in the ordering of its internal affairs, selection of leaders and members, defining of doctrines and principles, and resolving of organizational disputes in the furtherance of its mission, or in its determination that only persons committed to its mission should conduct these activities.”
LGBTQ advocacy groups claim that a student group in a taxpayer-funded school could use this section to argue that it can now prohibit LGBTQ members. The group can, for example, say that it religiously opposes homosexuality, and ban any gay students from the group since their existence would go against such a belief. And the student group could do this, LGBTQ groups argue, even if school or other on-campus policies ban anti-LGBTQ discrimination, because state law takes precedence.
“Governor Bevin’s shameful decision to sign this discriminatory bill into law jeopardizes non-discrimination policies at public high schools, colleges, and universities,” Sarah Warbelow, legal director of the LGBTQ advocacy group HRC, said in a statement. “No student should fear being excluded from a school club or participating in a school activity because they are LGBTQ. While of course private groups should have the freedom to express religious viewpoints, they should not be able to unfairly discriminate with taxpayer funds.”
But here’s the thing: As alarming as this may sound, a student group could already discriminate against LGBTQ peers under Kentucky law. So while a school on its own could ban anti-LGBTQ discrimination within its campus, state law offered no such protections. That’s because Kentucky, like most states, already fails to protect LGBTQ people in its nondiscrimination laws. And while LGBTQ groups argue that a creative reading of federal law should prohibit such discrimination, courts have yet to fully uphold that view — leaving anti-LGBTQ discrimination legal in most of the country.
Under most state laws, anti-LGBTQ discrimination is already legal
Under most states’ laws and federal law, LGBTQ people aren’t explicitly protected from discrimination in the workplace, housing, and public accommodations (restaurants, hotels, and other places that serve the public). This means that a person can be fired from a job, evicted from a home, or kicked out of a business just because an employer, landlord, or business owner doesn’t approve of the person’s sexual orientation or gender identity.
The same applies in schools: Under most states’ laws and federal law, LGBTQ people aren’t explicitly protected from discrimination in schools. So a school principal or student group can discriminate on the basis of sexual orientation or gender identity.
This was all possible before any religious freedom law was passed. To put it plainly: A person can simply say, “I do not like gay people,” and from that point forward ban any gay people from his business, citing absolutely no religious belief or religious freedom law whatsoever.
So in Kentucky, a student group could already deny membership to LGBTQ people, and there would be no legal recourse under state law.
The same is not true for discrimination based on their race or sex. That’s because most states’ laws and federal law ban discrimination based on race in all of these settings, and discrimination based on sex in all of these settings except public accommodations.
But similar laws do not exist for sexual orientation or gender identity, so discrimination against LGBTQ people isn’t explicitly illegal.
Advocacy groups argue, however, that federal bans on sex discrimination should shield LGBTQ people from discrimination, because discrimination based on sexual orientation or gender identity is fundamentally rooted in sex-based expectations. For example, if someone discriminates against a gay man, that’s largely based on the expectation that a man should only love or have sex with a woman — a belief built on the idea of what a person of a certain sex should be like. Similarly, if someone discriminates against a trans woman, that’s largely based on the expectation that a person designated male at birth should identify as a man — again, a belief built on the idea of what a person of a certain sex assigned at birth should be like.
But courts have yet to fully uphold this interpretation of federal civil rights law, so it’s not the law of the land. Until courts do uphold that view, anti-LGBTQ discrimination is legal in most of America and Kentucky, regardless of what religious freedom law Gov. Bevin and his Republican peers in the legislature can think up.