Seventy percent of Americans think it should be illegal to fire someone for being gay, and 75 percent think that’s already the law. But in fact, in 28 states, it’s perfectly legal to fire a gay or trans person because you don’t like their sexual or gender identity. And with Republicans in state legislatures and the House of Representatives afraid to upset the Christian Right, the gap between public opinion and legal reality isn’t closing any time soon.
The result, on federal and state levels, has often been government by executive order. In 2014, for example, President Obama required federal contractors to agree not to discriminate against LGBT people. And earlier this year, Louisiana’s governor, John Bel Edwards, did the same.
That has led to one of the most bizarre battles over LGBT equality in the nation, in which the governor is suing his own attorney general for voiding dozens of contracts that have the non-discrimination clause in it, even when the contractors were perfectly happy to sign them.
As you might expect, this is pure politics, played at the expense of Louisiana taxpayers.
Attorney General Jeff Landry is a Republican with his eyes on the governor’s mansion. Governor Edwards, meanwhile, is a Democrat who succeeded the GOP’s once-rising star, Bobby Jindal, who had not only rescinded LGBT protections, but had actually signed his own executive order expressly permitting discrimination against gay people.
When Edwards turned the tables in the beginning of this year, conservatives cried foul. Suddenly, the executive orders that were just fine in the Jindal administration became outrageous cases of executive overreach in the Edwards one. Landry fell in line, first issuing a memo that the Edwards order was unenforceable, and then — even though no contractors had objected to the non-discrimination language — voiding 37 contracts that contained it.
The stalled contracts are primarily with lawyers who work with the state, and according to the New Orleans Times-Picayune, they relate to state ports, medical malpractice awards, and oversight of state bonds.
Edwards and Landry met to try to resolve the dispute, but they failed to do so. According to the Times-Picayune, Edwards said at a press conference, “He basically told me that if I wanted him to approve those contracts that I would have to sue him. So I’m obliging him on that.”
The court date is set for October 17, with Louisiana taxpayers paying for both sides.
Landry’s argument is that gender identity—he calls it “gender identity,” in scarequotes—has never been a legally protected class under federal or state anti-discrimination laws. Therefore, Edwards’ order is effectively making new law, creating a new class of protected people.
Though he claims his actions are not motivated by the substance of the executive order, Landry is also, clearly, against protecting LGBT people from discrimination. “I think that the general mood indicates that this type of policy is not supported here in this state,” he said.
Under Landry’s direction, Louisiana is also one of 23 states suing the federal government over a related issue: the Department of Justice’s letter to schools that Title IX, which prohibits discrimination based on gender, also covers discrimination based on gender identity. Just as schools may not discriminate against girls (or boys), the DOJ stated, so they may not discriminate against transgender girls or boys.
Like Landry’s claim in Louisiana, the states’ lawsuit claims not only that gender identity is not covered by Title IX, but that since it hasn’t been explicitly defined in any law, transgender people can’t be protected at all. The states won a preliminary injunction against the rules in August, with a notoriously anti-gay judge extending the injunction nationwide—even in states that didn’t join in the lawsuit.
Behind the legal claims, of course, is a whole lot of transphobia. Conservatives have obsessively focused on the “bathroom panic”—that transgender women are actually men in disguise, waiting to exploit these laws to assault women in restrooms.
For example, Landry has stated that the federal guidance “creates an environment in which children may be more easily exposed to sexual predators,” despite there being zero evidence for this incendiary claim. Indeed, in most school environments, trans kids are simply allowed to use a single-stall, gender-neutral restroom—such as faculty restrooms, for instance.
Landry also said that the DOJ rules “place the mental well-being and privacy rights of 99 percent of Louisiana’s children at risk without any demonstrable evidence of benefit to the less than one percent of the population this policy purports to benefit.”
That, too, is contradicted by abundant evidence that transgender people are frequently assaulted in restrooms and elsewhere—and, again, the fact that no one’s well-being is disturbed when a kid uses a single-stall bathroom somewhere else in school. The entire “bathroom panic” is based on a lie.
Landry’s arguments in Louisiana are equally specious.
First, if Governor Edwards’ executive order is indeed unconstitutional, then the remedy would simply be for an affected contractor to sue. Courts are supposed to resolve actual cases or controversies, after all, not merely hypothetical ones. So, if a contractor were to refuse to sign a contract with the provision in it, and the Louisiana government were to refuse to sign a contract without it, there would then be a ripe controversy for a court to decide.
Here, no one has objected. Landry has simply held the 37 contracts to be invalid because of a single clause.
That, too, is legally preposterous. As a technical matter, nearly all contracts have a “severability clause,” which means that even if one clause of the contract is invalid, the rest of the contract holds. So even if Landry is correct about the executive order, that doesn’t justify junking the entire contract and holding up state business.
Indeed, even some Republicans who are opposed to LGBT protections have said that Landry has overstepped his authority.
Finally, Landry has insisted, over and over again, that “the governor continues to want to push for a protected class that the Legislature has… rejected.” That’s false for three reasons. First, the legislature rejected a broad LGBT anti-discrimination law, not a limited provision applying to government contractors. Second, they voted down the law, not some referendum on whether gender identity is a thing.
And third, the governor’s order was based on the federal Department of Justice’s interpretation of Title IX—which is precisely the DOJ’s job. No one has invented a new protected class; DOJ has simply said that gender-identity discrimination is a kind of sex discrimination.
As a political gambit, however, Landry’s action makes all the sense in the world. Never mind the legal incoherence, rhetorical exaggerations, and evidence-free pronouncements. Never mind the fact that he will surely lose in court eventually. He might win at the ballot box—and that, obviously, is what this quixotic, hurtful crusade is all about.