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How Trump could undo LGBTQ rights gains even if he doesn’t repeal Obama’s orders

An executive order draft is reportedly circulating the White House. It may not be legit, but the concerns behind it are.

LGBTQ groups are worried that President Donald Trump will soon act on what they’ve long feared: an executive order that would give federal employees and contractors a “license to discriminate” based on sexual orientation and gender identity.

The White House said the order is not happening — for now. “There is no plan to take any action on this topic at this time,” principal Deputy Press Secretary Sarah Sanders told me in an email Thursday morning. But LGBTQ groups remain fearful, pointing to Trump and his Republican colleagues’ history on these issues and a recent leak.

A leaked draft of a “religious freedom” executive order has reportedly circulated around the White House, detailing sweeping “protections” for religious people and groups that legal experts say would effectively let federal contractors and potentially federal employees discriminate against LGBTQ people.

“This order is very broad and very sweeping,” Ira Lupu, a George Washington University professor who studies the intersection of religion and the law, told me.

But whether the order will actually happen — perhaps not soon, but in the future — remains unknown. It’s unclear if White House staff actually wrote it, and whether it is circulating the White House as a serious document or if it was merely sent to them by conservative religious groups that have long called for and helped write these kinds of measures.

Nonetheless, LGBTQ groups have sounded the alarm.

“The leaked draft of Donald Trump's License to Discriminate order is sweeping and dangerous,” Human Rights Campaign President Chad Griffin said in a statement. “If Donald Trump goes through with even a fraction of this order, he'll reveal himself as a true enemy to LGBTQ people. We’ve already seen that the Trump administration is willing to go after women, immigrants, people of color, and most frighteningly, people who disagree with him.”

Regardless of whether the executive order is real, the concerns behind it are genuine: LGBTQ groups have long worried that Trump — with Vice President Mike Pence, one of the most anti-LGBTQ politicians in the country, at his side — would pull back many of the gains made for equal rights during former President Barack Obama’s time in office. And Trump has been an advocate of “religious freedom” measures that could peel back LGBTQ rights. So while the executive order may not be for real, it represents the kind of attack that LGBTQ organizations suspect is coming.

Such an attack would imperil legal terrain that’s already very shaky for LGBTQ people. In most of the US, state and federal laws don’t explicitly ban anti-LGBTQ discrimination in any setting — allowing employers, landlords, and business owners to discriminate against people just based on their sexual orientation or gender identity. The federal government, through executive orders, has put protections in place over the past few years that provide some assurances for LGBTQ people in their interactions with federal agencies and contractors. Now LGBTQ groups feel that even those limited executive protections are under threat.

Anti-LGBTQ discrimination isn’t explicitly illegal in America

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. A religious freedom measure doesn’t even have to come into the picture for this to be allowed under most states’ laws.

Some civil rights advocates argue that federal law already protects LGBTQ people. In their view, federal civil rights laws for the workplace and housing that prohibit sex discrimination also ban anti-LGBTQ discrimination, because discrimination against someone based on sexual orientation or gender identity is fundamentally rooted in views and stereotypes about what people of certain sexes (assigned at birth) should be like — whom they should love, how they should identify, and so on. But this argument is currently being challenged in court, and it’s unclear if the courts will ultimately side with LGBTQ advocates on this issue.

In the meantime, anti-LGBTQ discrimination isn’t explicitly banned in most of America.

The drafted order may not happen, but it’s the kind of measure LGBTQ advocates are worried about

Executive orders from Obama and former President Bill Clinton provided some relief against the void of nondiscrimination laws for LGBTQ people: Those orders collectively banned federal employers, agencies, and contractors from discriminating based on sexual orientation and gender identity.

Earlier this week, Trump suggested he would keep those executive orders. The White House put out the announcement as evidence that Trump, who still opposes same-sex marriage, is friendlier to LGBTQ rights than his Republican predecessors.

But Trump’s announcement came with a big catch: It didn’t rule out the possibility of a separate religious freedom order that could create a big loophole in the Obama and Clinton orders.

The drafted executive order — which, again, the White House hasn’t verified — provides a model for how the Obama and Clinton nondiscrimination orders could be weakened without an explicit repeal:

  1. It would double down on the 1993 Religious Freedom Restoration Act, which says that the government can’t infringe on people’s religious beliefs without a compelling government interest. While this wouldn’t allow outright anti-LGBTQ discrimination by federal agencies, Lupu said it could embolden federal employees to try to deny basic government services — from Social Security to veteran benefits — to LGBTQ people. “What it’s changing is an attitude — an attitude within the federal agencies about the rights of employees to insist on religious exemptions from their responsibilities,” Lupu said. “And that would be a new thing.”
  2. It would create a religious exemption to Obama’s order on federal contractors that could allow contractors to cite their religious beliefs to discriminate against LGBTQ people. It’s unclear just what kind of federal contractor would be covered under this measure; Lupu said that the definition of “person” used in the order is so broad that it could include for-profit companies but perhaps not large public corporations. “If Hobby Lobby had a federal contract and they didn’t want to pay spousal benefits to someone in a same-sex marriage,” Lupu said, “this order looks like it’s designed to give them a defense or empower them in some way.”

The important thing here isn’t whether the drafted order is under real consideration. The White House wouldn’t confirm that one way or the other to myself, the Nation, or ABC News.

But the drafted order provides the kind of model that religious conservatives have long supported to try to weaken LGBTQ rights gains.

The first part of the order mimics the kind of religious freedom law — a Religious Freedom Restoration Act (RFRA) — that conservative groups have pushed for state governments to pass over the past few years. Legal experts say that these laws, which have existed for decades, don’t allow anti-LGBTQ discrimination and have never been successfully used for discrimination against anyone. But anti-LGBTQ groups have pushed for courts to eventually interpret the measures to be wide-ranging — allowing, for instance, a government employee to cite his religion to refuse service to LGBTQ people.

The second part of the order mimics what is often referred to as a First Amendment Defense Act (FADA). This type of law is much more explicit than a RFRA in that it outright allows someone to cite his or her religious beliefs to discriminate against LGBTQ people. The order, for example, explicitly prevents the government from acting against a federal contractor — whether by taking away a contract or tax-exempt status — if the contractor acts on “the belief that marriage is or should be recognized as the union of one man and one woman.”

Even if the order isn’t legit, there’s reason to believe Trump supports something like this: He has said that he supports a federal FADA. “I will sign it to protect the deeply held religious beliefs of Catholics and the beliefs of Americans of all faiths,” Trump said in September.

And Trump has also sided with religious conservatives on other issues, saying at the National Prayer Breakfast on Thursday that he will “totally destroy” a law banning political activity by churches.

So while the drafted order may end up a bust, it’s the kind of thing that LGBTQ groups worry the Trump administration will eventually employ — and that religious groups are pushing for.

Religious conservatives want this. LGBTQ groups don’t.

LGBTQ groups have long warned that the “religious freedom” path is the track Trump will take to weaken the past few years’ equal rights gains.

Adding broad religious exemptions to the executive orders “is basically the same thing as authorizing discrimination,” James Esseks, director of the ACLU’s LGBT and HIV Project, told me last month. “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.”

Indeed, when the drafted executive order leaked, LGBTQ groups were quick to sound the alarm.

“Make no mistake: This shameful, sweeping, and unconstitutional order would be about firing people and denying them health care and other government services simply because of who they are,” Mara Keisling, executive director of the National Center for Transgender Equality, said in a statement.

There’s a reason that LGBTQ groups are so worried — to the point even an unverified draft makes them panic: The Trump administration is filled with people, from Pence to Attorney General–nominee Jeff Sessions, who for decades have worked closely with conservative religious groups that have opposed even basic rights for LGBTQ people.

Pence in particular was involved in his own enormous controversy in 2015 when as governor of Indiana he signed a state-level RFRA. Although legal experts cautioned that the law probably would not allow anti-LGBTQ discrimination and that the real problem is Indiana has no nondiscrimination laws protecting LGBTQ people, the law inspired a massive backlash — protests, editorials in opposition, and business boycotts. Pence eventually amended the law to make it clear that it doesn’t allow discrimination.

LGBTQ advocates hoped this would teach Pence his lesson on these issues. But he has a long history of LGBTQ positions — from opposing the repeal of “don’t ask, don’t tell” to arguing that preventing same-sex marriage is “God’s idea.” And religious conservatives have continued pushing for these kinds of laws all around the country — and they seem confident that Trump, who supports RFRA and FADA, would also sign an executive order or law to such effect.

Tony Perkins, president of the anti-LGBTQ Family Research Council, claimed that Trump will sign an executive order on “religious liberty.” Acknowledging he hasn't “gotten complete clarity,” he told CNBC that “I think this is going to be addressed” — after the Trump administration said that it’s keeping Obama’s order for federal contractors on Tuesday.

Mat Staver, who heads the anti-LGBTQ Liberty Counsel, told me that he doesn’t know whether the White House will sign the leaked order. But he said he believes Trump will act on “religious liberty” at some point, arguing that it’s necessary to protect people’s religious beliefs from government intrusion. “I don’t know what he will do,” Staver said. “Certainly, he has been an advocate of religious liberty.”

This is essentially the concern for LGBTQ groups: Even if Trump doesn’t directly challenge the gains of the Obama years, his administration could leverage “religious freedom” as a weapon, whether through an executive order signed by Trump alone or legislation passed by Congress, that pulls back the past decade’s civil rights victories.


Watch: How should the media cover a White House that isn’t afraid to lie?

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