Over the weekend, the New York Times reported that Attorney General Jeff SessionsJefferson (Jeff) Beauregard SessionsTrump criticizes Justice for restoring McCabe's benefits McCabe wins back full FBI pension after being fired under Trump Overnight Hillicon Valley — Apple issues security update against spyware vulnerability MORE personally intervened to dispatch a federal hate crimes lawyer to prosecute a man in Iowa who has been charged with the murder of a transgender high school student. The newspaper characterized the move by Sessions as an effort to defy his anti-civil rights image.
But, please, don’t be fooled.
From the moment he was confirmed as attorney general of the United States, Sessions has been the driving force behind the Trump administration’s attacks on basic dignity and equality for LGBT people.
One of his very first actions as attorney general was to rescind guidance issued by the Obama administration clarifying legal protections for transgender students under federal civil rights law.
The memo stressed that it was a “conclusion of law, not policy.” But it completely failed to address the decades of case law — as well as the 2014 position of the government’s own Equal Employment Opportunity Commission — that have held discrimination against transgender people is sex discrimination and prohibited under federal law. This anti-transgender move must be probed further.
How many career attorneys in the Justice Department’s Civil Rights Division were involved in its drafting and development? Or was the move prompted by President Trump and Sessions’ political appointees as part of their drive to implement an effectively anti-LGBT agenda?
Later this fall, the U.S. Supreme Court will hear arguments in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, a case that will decide whether businesses that are open to the public can discriminate against LGBT people by refusing to serve them if serving them would force the business to violate their religious beliefs.
On September 7, the Department of Justice filed a shocking brief with the Supreme Court arguing that so-called “expressive” businesses like bakeries have a constitutional right under the First Amendment to discriminate against LGBT people. The implications of the administration’s legal arguments — awful as they are for LGBT people – open the door to even more discrimination.
Is it also the position of the Department of Justice that at least some businesses, in addition to being able to discriminate against same-sex couples, could also refuse to serve an inter-faith couple if serving them would allegedly violate the First Amendment? If they have a constitutional right to express their views by refusing to comply with a nondiscrimination law, could they defy other government rules as well?
On October 6, the Department of Justice issued a 25-page memo to all federal agencies purporting to provide guidance on religious liberty protections in federal law.
The guidance is a follow-up to President Trump’s May executive order that signaled an intention to use religion to license discrimination. Unsurprisingly, the guidance doubles down on this distorted understanding of religious liberty as a tool for discrimination, including through a very broad and dangerous reading of the federal Religious Freedom Restoration Act (RFRA).
The guidance also encourages religiously affiliated employers — including very large employers like universities and hospitals — to discriminate in ways that go beyond the limited exemptions that exist in current federal law. It does so by allowing discrimination against those whose beliefs and “conduct” (e.g. being in a same-sex relationship) is found to be objectionable by the employer. This guidance opens the door for widespread, religious-based discrimination in a variety of contexts.
Could a religiously affiliated university that receives a sizable federal contract, for instance, engage in taxpayer-funded discrimination by firing a transgender employee based on the university’s belief that a person’s gender identity is fixed at or before birth?
The guidance might also permit employees of the federal government to use RFRA to refuse to provide critical government services to almost anyone who does not adhere to the employee’s religious beliefs. Could this allow an employee of FEMA, for example, to refuse to provide disaster assistance to a same-sex couple based on the employee’s belief that homosexuality is a sin and marriage should be reserved to one man and one woman?
In many ways, these are just the tip of the anti-civil rights agenda that Attorney General Sessions is vigorously pursuing at the Justice Department.
This Wednesday, Sessions is set to appear before the Senate Judiciary Committee for a Department of Justice oversight hearing. Senators must hold Sessions accountable for these attacks against the LGBT community. They must question him aggressively about his repeated efforts to undermine and erase the progress that LGBT people have made in recent years.
Ian Thompson is a legislative representative in the American Civil Liberties Union’s Washington Legislative Office.