The latest Republican strategy to turn back the tide of history against LGBT people is a masterpiece of doublespeak: introduce “civil rights” legislation that is, in fact, anti-gay.
The first salvo of this new, cynical tactic has just been fired by Republicans in the Indiana State Senate. There, a new bill is being sold as a landmark compromise on LGBT equality; on the face of it; the bill protects LGBT people from discrimination in housing, employment, and public accommodations.
Except the Indiana bill has three “poison pills” that turn the clock backwards for LGBT people.
Wildly Broad Exemptions
Indiana, of course, is still reeling from last year’s debacle in which its Religious Freedom Restoration Act was revealed to be a license for businesses to discriminate against gays. In fact, the new bill tries to write an even broader religious exemption into law, but under the cover of “civil rights.”
First, the bill adopts the so-called “Utah Compromise”—actually a brilliant propaganda move by the Church of Later-day Saints—by including a huge exemption for any religiously affiliated organizations. Indiana goes even further, specifically exempting adoption agencies, day-care centers, and any nonprofit organization operated “in conjunction” with a religious organization.
In practice, that means hospital systems, the Boy Scouts, the Salvation Army—all of these can (and do) prevent me from visiting my lawfully wedded husband in the hospital; refuse medical treatment to my kids; refuse to place foster kids in my home, even if they’ve received government money to do it; refuse to fill prescriptions; and refuse to provide health insurance.
This language is new in the Indiana bill, and shows why religious exemptions are like ever-expanding concentric circles, extending from the reasonable to the outrageous. If adopted, it would set a dangerous new precedent.
Second, any “person”—which, the Supreme Court has informed us, also includes multinational corporations—is specifically allowed to withhold “accommodations or other facilities, goods or other property, privileges, or services” if there’s any connection to a marriage, as long as the business has fewer than four employees. Indiana small businesses can hang out a shingle and say “no gays allowed.”
Can you imagine what it would be like if they said “no blacks allowed?” This battle isn’t about pizzas and flowers. It’s about whether some people are second-class citizens, and whether others can pick and choose which laws they want to follow.
That second-class status is made even more egregious because the bill’s exemptions only apply to sexual orientation, while the bill itself extends protections to sexual orientation, gender identity, and veteran status. In other words, the bill goes out of its way to say that veterans get their full rights, and gays do not.
In a shining example of hypocrisy, Republicans, who claim to advocate local rule, have once again prohibited local municipalities from enacting their own anti-discrimination ordinances. Indiana’s law contains a “pre-emption” clause, like those we’ve seen in Utah, Arkansas, and elsewhere, that forbid any city or town from enacting protections “more stringent” than those adopted by the state.
This “preemption clause” would thus remove protections for LGBT people in Indianapolis, Bloomington, Evansville, West Lafayette, South Bend, New Albany, Fort Wayne, Michigan City, as well as Muncie, Hammond, Whitestown, Zionsville, Columbus, Terre Haute, Martinsville, Carmel, and Goshen, which all passed protections for sexual orientation and gender identity within the last year.
Since these 17 cities and towns didn’t adopt the state’s broad exemptions and other limitations, their civil rights ordinances would be voided. So much for home rule. And so much for the idea that this “civil rights” would advance civil rights. For a majority of the state’s population, it would set them back.
Pardon my French, but there’s really no other way to describe the GOP bill’s “bathroom exceptions,” which perpetuate myths about transgender people reminiscent of 1950s lies about gay predators menacing public restrooms. Here, the Indiana Senate Republicans have specifically stated that “it is not a discriminatory practice” to “maintain separate restrooms” or “enforce rules and policies related to the use of restrooms” or “enforce dress codes and policies based on sex, sexual orientation, or gender identity.”
This is a mix of the noxious and the nonsensical.
The nonsense is that there is actually any issue to discuss here. Most transgender people are already using gender-appropriate restrooms and no one has any idea. Meanwhile, there is no such thing as men taking advantage of anti-discrimination law by dressing up as women and lurking in women’s locker rooms or toilets. Sadly, if men want to assault women, there are far easier ways to do it.
The noxious is the inclusion of “dress codes,” which means that if an employee is trans, and, let’s say, has a full beard, chest hair, and no breasts, it is “not a discriminatory practice” to make him wear a dress and high heels, because at my for-profit business, that’s how I say things should be.
This sneaky provision undoes years of employment nondiscrimination law and would harm an already vulnerable population by making it even harder for them to get and retain a job.
It’s also probably unconstitutional. If majorities got to decide the meaning of discrimination, we’d still be living under Jim Crow. So, this bill, which in its preamble states that it is to help “individuals of good faith” to “live and work together without undue litigation,” will in fact generate litigation from the get go.
None of this is to say that LGBT rights must be absolute, or that all compromises are bad. Some LGBT activists, for example, have criticized the bill’s requirement that a transgender person prove either that they’ve received medical care for gender issues, or that they’ve asserted their gender identity for 12 months. But it’s reasonable to require some level of evidence of gender identity to prevent the law from being abused.
Similarly, a $1,000 penalty for frivolous or malicious lawsuits is unlikely to deter parties with legitimate grievances. Judges know how to enforce these provisions fairly.
The bill would make it illegal for large, for-profit businesses to discriminate on the basis of sexual orientation (even though federal law probably already does so), and partially enshrine LGBT equality into the law. This is a step forward.
But overall, the bill takes one step forward and two steps back. It is a transparent attempt to seize the initiative on “civil rights” in order to limit the reach of civil rights laws, limit municipalities from passing their own laws, and limit transgender people from peeing in peace.
Republicans have succeeded in turning the phrase “religious liberty” from a cherished value for all Americans into code for discrimination. Now, in Indiana, they’re doing the same for “civil rights.” George Orwell would be proud.