Lawmakers in Utah have proposed a new bill that would create statewide nondiscrimination protections based on sexual orientation and gender identity. The bill’s language is a result of LGBT and Mormon leaders working together, and it enjoys support from both sides.
S.B. 296, however, is far from a perfect bill. It contains a lot of provisions that are unique to the legal climate of Utah that would not translate elsewhere. Given the ubiquitous presence of the Church of Latter-Day Saints (LDS) in Utah, it may be the best bill that could pass there — and is thus better than no protections. Though it does contain some interesting new ideas that could be adapted elsewhere, it is by no means a model for other states to consider.
For example, the bill only protects LGBT people in employment and housing; it does not address public accommodations (e.g. how businesses treat customers). Thus, as a civil rights bill, it pales compared to the more universal protections afforded other classes like race at the national level. It also falls short of the wider array of protections offered by many other states, and the kind of proposals activists hope to soon see introduced in Congress.
Still, its employment protections contain some commendably robust language. “Gender identity” is accurately defined according to the American Psychiatric Association’s definition, and employers must accommodate the gender identity of employees when it comes to sex-segregated facilities like restrooms, shower facilities, and dressing facilities. Likewise, dress codes and grooming standards can be enforced, but must also respect transgender employees’ identities.
On the other hand, the bill exempts any employers that constitute “a religious organization, a religious corporation sole, a religious association, a religious society, a religious educational institution, or a religious leader, when that individual is acting in the capacity of a religious leader.” Religious leaders are specifically defined as somebody who is an “authorized representative” of a religious organization. The exemption also extends to any corporation or association that is an affiliate or subsidiary of such a religious organization. The Boy Scouts of America (BSA), which is quite prominent in Utah because of LDS support, enjoys its own specific exemption. The exemption is arguably unnecessary, as the BSA has a Supreme Court ruling on its side, but given that the organization still discriminates against gay Scout leaders, the explicit mention is indicative of the kind of discrimination the broader exemption is intended to enable.
This is very similar to the exemption LGBT groups turned against in the Employment Non-Discrimination Act (ENDA) previously considered by Congress. It similarly stated that religious organizations would be free to ignore employment protections for LGBT workers. In the original Civil Rights Act of 1964, religious corporations were only offered one exemption for employment discrimination: discriminating on the basis of an employee’s religion. A religious organization cannot use its religious beliefs to justify discrimination on the basis of race or the other protected classes. Extending the religious exemption to sexual orientation and gender identity conflates the nature of those identities with employers’ religious beliefs about them and implies that LGBT people are entitled to less protection under the law.
The ACLU was one of the most vocal opponents of ENDA’s religious exemption, but it has endorsed Utah’s bill, despite the fact it has an identical exemption. Rose Saxe, Senior Staff Attorney for the ACLU’s LGBT & AIDS Project, explained to ThinkProgress that what looks like hypocrisy for the civil rights organization actually isn’t because of Utah’s unique circumstances.
“One of our core principles is that there shouldn’t be a different standard for anti-LGBT discrimination when it comes to religious exemptions,” Saxe confirmed. But “Utah already has an incredibly broad religious exemption,” she explained. “Religious organizations are just exempt from the definition of ’employer’ for all forms of protected discrimination. So nobody can sue them for race discrimination, for age discrimination, for sex discrimination. They’re just not an ’employer’ for purposes of the employment law in Utah. It is one of the broadest exemptions, if not the broadest, in the country.”
So whereas a religious exemption for sexual orientation and gender identity discrimination in federal law would treat those classes differently than other groups, such an exemption in Utah would actually treat LGBT people exactly the same as other protected classes. And while that exemption might not be ideal, Saxe pointed out that “when you’re adding LGBT protections, it’s not necessarily the time to walk back an existing exemption.” Passing this law would only be a step up for LGBT people, protecting as many as 37,000 LGBT workers across the state, according to the Williams Institute.
S.B. 296’s religious exemptions for housing protections appear to be more problematic for LGBT people, though the bill’s language is difficult to discern. Any dwelling, temporary, or permanent residence facility that is run by a nonprofit, charitable organization, a religious corporation, or one of its subsidiaries would seemingly be allowed to discriminate on the basis of sexual orientation or gender identity “for reasons of personal modesty or privacy, or in the furtherance of a religious institution’s free exercise of religious rights.” Given almost all homeless shelters are run by nonprofit agencies, this would hypothetically give every shelter in the state a license to refuse service to LGBT people. This could create particular concerns for transgender people, one in five of whom have experienced homelessness in their lives. Even if shelters were willing to serve transgender clients, this bill would presumably allow them to disregard the clients’ identities and force them to be housed instead based on the gender they were assigned at birth.
In terms of protecting the “religious freedom” of employees, the bill does offer some interesting new language that perhaps could be more widely adapted. The legislation would protect employees’ right to express their religious or moral beliefs both in the workplace and outside of it “unless the expression is in direct conflict with the essential business-related interests of the employer.” If LDS officials find this language acceptable, perhaps other religious conservatives might too. What “essential business-related interests” means might have to be fleshed out or explored on a case-by-case basis, and it could be so high a standard as to make the exemption quite too broad for the law to be enforced. If interpreted to favor the employer’s decision-making on such matters, however, it could justify actions against employees who express their beliefs in ways that negatively impact the working environment. For example, recruitment and retention of LGBT employees has been found to be good for businesses, so if an employee is making LGBT colleagues feel unsafe or unwelcome, then that would be an indication the employee had crossed the line.
In a case like when Mozilla brought on Brendan Eich as CEO despite his public opposition to same-sex marriage, the controversy incensed both users of Mozilla products as well as many of the developers that make the company run. The decision and its backlash had clear implications for the success of the business, so it seems unlikely that the exemption in this bill would have protected him. In the end, he stepped down on his own accord, seeming to recognize he was not a good fit for the success of the company, if only because the controversy wouldn’t go away. Nevertheless, LDS leaders cite Eich as the kind of victim whose religious freedom they’d like to see better protected, so maybe they have different expectations for how this language would impact such a situation.
One other possible problem with the Utah bill is its provisions stipulating that it “supersedes and preempts” any local ordinances. This is similar in a way to the law that recently passed in Arkansas — and bills proposed elsewhere — that block towns and cities from passing LGBT protections if they’re not already part of state law. In the case of the Utah bill, it would impose the state level exemptions on any municipality that did not already have them. Though this wouldn’t change anything for Utah’s cities that already have LGBT protections, it could be a problematic step back for LGBT equality if similarly proposed in other states.
In a sense, S.B. 296, which passed unanimously out of the Senate Business and Labor Committee on Thursday, is not much of a compromise for religious conservatives, because in Utah, religious organizations are free to discriminate however they want. It will nevertheless protect many LGBT workers from discrimination across the state, and it will largely do so without treating them differently than other protected classes. It is that standard that the rest of the country should aim to follow — not Utah’s broad religious exemptions.