Amid the chaos that spawned from his immigration order, President Donald Trump took a surprisingly positive step for progressives this week: He announced on Monday, via the New York Times, that he will keep an executive order signed by former President Barack Obama that protects LGBTQ workers from discrimination by federal contractors.
According to the Times, the decision to keep the order intact was Trump’s. That continues a narrative that shows he is, relative to other Republicans, friendlier to LGBTQ people — despite Trump’s ongoing opposition to same-sex marriage. White House officials pointed out to the Times that he was the first Republican nominee for president to mention the LGBTQ community in his national convention speech.
But Trump’s decision comes with a big catch, buried toward the end of the New York Times article: The decision to keep this executive order does not prevent Trump from signing another order that creates religious exemptions for the LGBTQ protections.
Depending on how that other executive order is written, it could allow federal contractors to cite their religious beliefs — for example, religious opposition to same-sex marriage or just LGBTQ people in general — to fire, refuse to hire, or refuse to promote an LGBTQ worker.
There have been ongoing but unverified rumors that the Trump administration is considering a religious exemption order, buoyed by Trump’s picks of anti-LGBTQ politicians — like Vice President Mike Pence and Attorney General–nominee Jeff Sessions — to help lead his administration. And Trump has said he supports the First Amendment Defense Act, a law that would allow discrimination against LGBTQ people on a religious basis.
As James Esseks, director of the ACLU’s LGBT and HIV Project, told me a couple weeks ago, adding broad religious exemptions to the executive orders “is basically the same thing as authorizing discrimination.” He added, “Nobody should be fooled if they go about the retrenchment that we all fear they want to accomplish through exemptions instead of repealing the equality protections wholesale.”
The fact that these executive orders are a topic at all exemplifies a broader issue: In the US, it is not explicitly illegal in most states and under federal law to discriminate against people based on their sexual orientation or gender identity. So LGBTQ workers need executive orders at the federal level to protect them from potential discrimination.
Anti-LGBTQ discrimination isn’t explicitly banned in most of the US
It’s true: Most states and the federal government don’t explicitly ban discrimination based on sexual orientation and gender identity in the workplace, housing, or public accommodations (restaurants, hotels, and other places that serve the public).
So under most states’ laws, an employer can legally fire someone because he’s gay, a landlord can legally evict someone because she’s lesbian, and a hotel manager can legally deny service to someone who’s transgender — for no reason other than the person’s sexual orientation or gender identity.
Currently, 20 states ban at least some forms of discrimination based on sexual orientation and gender identity, while two additional states ban discrimination based on sexual orientation. Some other states protect public but not private employees from discrimination. Many municipalities have nondiscrimination laws that only apply within their local borders, even in states that don’t have such laws. And some companies prohibit discrimination in their own policies.
The protections vary from state to state: Utah’s protections don’t apply to public accommodations. Some states also include exemptions for discrimination based on religious grounds. Enforcement varies as well: Depending on the state, private lawsuits, fines, and jail time are all possible forms of punishment for discrimination.
It’s the void of lingering legal anti-LGBTQ discrimination that Obama’s executive order was meant to fill — by at least banning discrimination among federal contractors (and other orders protect federal LGBTQ employees as well). And while the White House told the Times that Trump won’t undo all of that progress, he might peel it back with broad religious exemptions.