'Religious Liberty' Stealth Attacks in Congress and California

One vote. That's all it took on Thursday, May 19, with House Speaker Paul Ryan holding the floor open long enough for GOP Majority Leader Kevin McCarthy of California to pressure seven Republicans to switch their votes and kill a measure to protect LGBT rights. Chaos erupted as Democrats shouted "Shame! Shame!" after members voted 213-212 to defeat an amendment by out New York Rep. Sean Patrick Maloney to uphold an executive order by President Obama that prohibits discrimination against LGBT employees by federal contractors.

"They literally snatched discrimination from the jaws of equality," Maloney told the Associated Press.

The LGBT community has been dealing with social conservatives and the anti-gay religious right blatantly killing or circumventing LGBT equality since 1977 when Anita Bryant and the Rev. Jerry Falwell's Moral Majority overturned a gay rights ordinance in Dade County, Florida, then the 40th such gay rights law in the country. The Bryant-Falwell "Save Our Children" crusade painted gays as sinful perverts and sexual predators who threaten children. That effort was stopped in California with the defeat of the anti-gay Briggs Initiative in 1978, which halted the initiative-focused momentum until 1986 when the AIDS crisis resurrected simmering anti-gay hatred.

Today, after much work on the ground and through the state legislature, California stands as a shining beacon for LGBT equality -- but the religious right has not given up its crusade. After the Human Rights Campaign revealed last year that a number of religious-based colleges and universities applied for exemptions from Title IX that would enable them to blatantly discriminate against LGBT students and employees, out California Assemblymember Evan Low and State Sen. Ricardo Lara authored legislation to require academic institutions that receive state funds to not discriminate (AB 1888, authored by Low and sponsored by Equality California and the National Center for Lesbian Rights) and reveal their applications for "religious liberty" waivers (SB 1146, authored by Lara and sponsored by Equality California).

AB 1888 faces a critical hearing in the Appropriations Committee on May 27 and the outcome is uncertain.

"California has long been a leader in civil rights protection for the LGBT community. We were therefore shocked to learn that private colleges and universities in our state have sought religious exemptions to Title IX, federal law that has been interpreted to protect against sexual orientation and gender identity discrimination, expressly for the purpose of permitting anti-LGBT discrimination," says Alice Kessler, managing partner for DiMare, Brown, Hicks & Kessler and legislative advocate for Equality California. "These exemptions have been sought just as we see the rise of fuller equality in terms of marriage and transgender issues. It's a disturbing trend that has crept into California without many people even being aware, and we must not allow it to propagate further. To the extent that these institutions wish to discriminate, they should not benefit from taxpayer subsidies such as the Cal Grant program."

But stealth attacks and unfettered LGBT-bashing in the name of "religious liberties" seems to be the new normal by forces determined to overturn any progress made on the LGBT equality front -- as evidenced by the stunning display of arrogance in Congress on Thursday.

"Speaker Ryan chose to disregard his previous promises of regular order and held the vote open so that he could convince some in his party to change their affirmative votes. It's shameful that some would go to such great lengths to attack the LGBT community," said California Rep. Ted Lieu in a statement. "[A]llowing discrimination in the workplace doesn't encourage productivity, it drastically harms it. As history consistently illustrates, those who support forms of discrimination are always proven wrong."

California Rep. Jackie Speier tweeted: "Browbeating colleagues to change House votes & support fed discrimination is scandalous and more akin to the Russian Politburo. #Shame."

On Friday, the Log Cabin Republicans weighed in, sending a letter to McCarthy "demanding full accountability and a public explanation for the unprecedented and likely unparliamentary act" that shook the decorum and adherence to protocol many had come to expect under Ryan.

Maloney's amendment to a military construction and veterans affairs funding bill was intended as a corrective to nullify a religious liberty provision (Sec. 1094) in the 2017 National Defense Authorization Act that passed late Wednesday. The language of the provision would exempt religious corporations, associations and institutions that receive federal contracts from having to adhere to Obama's 2014 executive order, which was an extension of an existing order from President George W. Bush.

"This country has a First Amendment that protects religious liberties, and that's all we were doing is protecting that," Texas Rep. Bill Flores told AP.

When time ran out to cast their votes, Maloney's amendment was on the cusp of passing, 217 to 206, one vote shy of the required 218. Joining the 183 Democrats in the final tally were 29 Republicans. But four California Republicans -- Reps. Darrell Issa, Jeff Denham, David Valadao and Mimi Walters -- switched their votes, along with Greg Walden of Oregon, Bruce Poliquin of Maine, and David Young of Iowa under pressure during the expanded session, causing the amendment's defeat.

"During an election year in which voters across the country are crying out because they feel our country's political system is at best broken and at worst rigged, the sham on the floor of the United States House of Representatives yesterday spearheaded by Leader McCarthy played up everything wrong with congress today," said Log Cabin Republicans President Gregory T. Angelo in a press release. "Beyond overriding an executive order that existed under President George W. Bush, yesterday's actions on the House floor defy the repeated promises of House leadership to operate under regular order and with transparency. Log Cabin Republicans commends the 29 Republicans who refused to succumb to strong-arm tactics and voted for the amendment, and demands those congressmembers who perpetuated this fraudulence be held accountable."

The anti-LGBT congressional sneak attack comes on top of strident reaction from a plethora of states to the U.S. Departments of Justice and Education May 13 guidance instructing the country's schools that they must ensure transgender students and teachers equal access to educational opportunities and facilities that match their gender identities -- or risk federal funding or other repercussions.

"Under Title IX of the Education Amendments of 1972, schools receiving federal money may not discriminate based on a student's sex, including a student's transgender status. The guidance makes clear that both federal agencies treat a student's gender identity as the student's sex for purposes of enforcing Title IX," says the DOJ press release.

"There is no room in our schools for discrimination of any kind, including discrimination against transgender students on the basis of their sex," said Attorney General Loretta E. Lynch. "This guidance gives administrators, teachers and parents the tools they need to protect transgender students from peer harassment and to identify and address unjust school policies. I look forward to continuing our work with the Department of Education -- and with schools across the country -- to create classroom environments that are safe, nurturing, and inclusive for all of our young people."

The response from Republican governors has not been pretty. As ThinkProgress points out, governors or top elected officials from Kentucky, Utah, Oklahoma, Louisiana, Idaho, Mississippi, Michigan, Arkansas, Texas, Alabama, Indiana, Georgia, Tennessee, as well as, famously now, North Carolina (the DOJ has sued the University of North Carolina) all look at the guidance as federal overreach they will ignore.

In addition to the "states rights" argument, social and religious conservatives argue that "religious liberty" trumps federal, state, and local anti-discrimination laws protecting LGBT rights. Catholic Charities set a precedent several years ago, shutting down their adoption services rather than abiding by state non-discrimination laws that required them to accommodate same sex couples. After the recent DOJ guidance to schools, two U.S. Conference of Catholic Bishops committee chairs issued their own statement, rejecting the guidance as "deeply disturbing."

"The guidance fails to address a number of important concerns and contradicts a basic understanding of human formation so well expressed by Pope Francis: that 'the young need to be helped to accept their own body as it was created,'" wrote Bishop Richard Malone and Archbishop George Lucas.

They also quoted Pope Francis as saying that "biological sex and the socio-cultural role of sex (gender) can be distinguished but not separated."

The Catholic statement is politically in line with the seemingly coordinated anti-transgender "bathroom bills" in the aforementioned states. "Children, youth, and parents in these difficult situations deserve compassion, sensitivity, and respect. All of these can be expressed without infringing on legitimate concerns about privacy and security on the part of the other young students and parents. The federal regulatory guidance issued on May 13 does not even attempt to achieve this balance," the bishops write. "It unfortunately does not respect the ongoing political discussion at the state and local levels and in Congress, or the broader cultural discussion, about how best to address these sensitive issues. Rather, the guidance short-circuits those discussions entirely."

The bishops may also want to ensure their schools' continued ability to receive "religious liberty" exemptions from Title IX.

Late last year, the Human Rights Campaign issued an alarming report on what they called "a disturbing trend by religious colleges and universities to request exemptions from existing civil rights law in order to discriminate against LGBT students." The report, entitled Hidden Discrimination: Title IX Religious Exemptions Putting LGBT Students at Risk, identified 56 colleges and universities based in 26 states that requested religious exemptions under Title IX since 2013. HRC spotlighted a little-known provision in the federal law that allows a religiously-controlled educational institution to request an exemption from full compliance with the law if "application of the law would conflict with specific tenets of the religion."

"There is an alarming and growing trend of schools quietly seeking the right to discriminate against LGBT students, and not disclosing that information publicly," said HRC President Chad Griffin in a press release. "We believe that religious liberty is a bedrock principle of our nation, however faith should never be used as a guise for discrimination. Prospective students and their parents deserve greater transparency, and we urge the Department of Education to take action by helping to increase accountability and to ensure that no student unknowingly enrolls in a school that intends to discriminate against them."

The HRC report included several studies noting the high rate of harassment, sexual assaults, misconduct and denial of services for LGBT students -- a concern the California Legislature has addressed for over a decade. Indeed, Fairfax High School Science teacher Dr. Virginia Uribe squabbled with anti-gay Traditional Values Coalition head Rev. Lou Sheldon in 1984 after she established Project 10, the drop out program that launched a movement. Early on, then-closeted LA Unified School Board president Jackie Goldberg also laid the ground for LGBT acceptance, sex education and by 2005, LAUSD had policies specifically protecting transgender students. In 2013, the Legislature adopted positive changes in treatment of transgender students statewide. That provoked several attempts to overturn the law through initiatives that never even made it to the ballot, though they became the model for the horrendous spate of political "bathroom bills" popping up around the country.

But interestingly, it is a California legal case that the religious right turns to to back up its Title IX exemption requests.

In 2011, the National Center for Lesbian Rights filed a complaint with the Department of Education's Office for Civil Rights (OCR) and the DOJ's Civil Rights Division on behalf of a transgender male Arcadia Unified middle school student who was forced to change for gym class in a private bathroom across the campus, rather than being able to change with his peers. NCLR alleged that the school district's treatment constituted sex discrimination in violation of Title IX. The complaint prompted a Justice Department investigation, which was resolved in 2013. The agreement required the school district to treat the student as male, revised its policies to give all transgender and gender-nonconforming students equal access to all school programs, facilities and activities and to conduct district-wide training.

The following year, the Education Department issued a document about sexual assaults on colleges campuses and included a note saying Title IX covered transgender students. Since, then the New York Times notes, "the California case and the Education Department's 2014 statement appear in many of the exemption applications filed by school administrators" for religious exemptions to Title IX.

Indeed, last year Belmont Abbey College President Dr. William K. Thierfelder specifically cited the Arcadia case in requesting the exemption "due to the religious beliefs of our institution."

"The school district in that dispute was ordered to allow a female student presenting herself as male to use the restroom, locker room and living accommodations of her choice, and to participate in boys' athletic programs," Dr. Thierfelder wrote. "We would not be able to make similar accommodations consistent with our Catholic beliefs."

Among those beliefs, Thierfelder wrote, was a rejection of the idea that the "resolution of tension between one's biological sex and the experience of gender" was possible, similar to what the Catholic bishops quoted Pope Francis as saying.

According to the New York Times: "One month later, the Office for Civil Rights agreed to exempt Belmont Abbey from 10 separate provisions of Title IX that prohibit discrimination based on gender identity, including employment, the admission of students, housing and the provision of facilities like restrooms and locker rooms. Rolando Rivas, a spokesman for Belmont Abbey College, said that the school did not discriminate. He said the waiver allowed it to operate "in congruence with the teachings of the church" in matters related to gender and sexuality."

The exemption requests for several California institutions sound similar. La Mirada-based Biola University's policy, for instance, says "In employment and in student life, we regard sex at birth as the identification of the given biological sex of each member of our constituency. We will not accept as valid alterations of one's sex at birth based on experiential variation or medical intervention." Their 2014 application for exemption for athletics, housing, restrooms and locker rooms is pending.

Redding-based Simpson University's policy reads, in part: "Humanity's failure to ground sexual identity in God's creative intentive and holy character violates biblical standards of sexual purity. We reject all attempts at constructing one's own sexual identity." Waiver granted.

Loma Linda University's policy: "Thou shall not commit adultery." "The Church cannot afford to deal lightly with such sins, nor permit personal considerations to affect its actions. It must register its decisive and emphatic disapproval of the sins of fornication, adultery, all acts of moral indiscretion and other grievous sins." Waiver granted.

Pepperdine University, which overlooks the Malibu coastline, received, then rescinded a Title IX exemption.

Lara's SB 1146 would do two things: require education institutions to widely disclose the request for religious exemptions and the intent to discriminate potential applicants; and the enforcement of the religious exemption to certain educational programs and activities.

In California 12 universities are exempt from both state and federal non-discrimination laws. These universities essentially have a license to discriminate and students have no recourse. That will end with my bill," Lara says.

The bill that has some religious-based universities and colleges gasping for divine help is Low's AB 1888, described by Equality California as "the Cal Grant Disinvestment in Discrimination." That bill would deny Cal Grant funding to colleges and universities that seek a "religious liberties" waiver from Title IX in order to circumvent federal LGBT protections. Students who apply to an explicitly religious-based discriminatory school will not be eligible to receive financial Cal Grant aid to attend that specific school and the school could also face substantial financial loses.

"This bill would require, commencing with the 2017-18 academic year, each Cal Grant participating institution, ... to certify ... that the institution shall not subject a student or employee of the institution on the basis of, among other things, sex, sexual orientation, gender identity, or gender expression, and that the institution shall not apply for, or receive, a waiver by the United States Department of Education from nondiscrimination requirements for the receipt of federal funds," the AB 1888 summary reads.

"We are a state that strives to provide equal opportunity for all people. California should not be using taxpayer money to subsidize colleges that choose to discriminate against LGBT students," says Low. "In this bill we're focusing on the worst of the worst in terms of institutions that discriminate. It does nothing to hurt or disadvantage students; in fact, there's specific language to grandfather in current students attending these institutions. AB 1888 is fundamentally about bringing the spending of our state money in line with the state's values as expressed by our laws."

"AB 1888 is currently pending in the Assembly Appropriations Committee," says Kessler. "It faces a critical vote on May 27th and we ask members of the LGBT community to contact the committee members to urge them to pass this bill onto the Assembly Floor."

If AB 1888 passes and is signed into law, might California start a trend to reverse the "religious liberty" excuse to discriminate against LGBT people, often in explicit defiance of the federal, state and local secular laws by which America is governed?

This article originally appeared on the Equality California blog EQCA POV.