After last spring’s disastrous “religious liberty” legislation and months of chatter, Indiana Republicans have cooked up some new legislation to protect LGBT people from discrimination. Unfortunately, a draft of the new bill reveals that it is designed to accomplish the complete opposite.
The bill, which will be known as Senate Bill 100, does add “sexual orientation” and “gender identity” to the state’s nondiscrimination laws as it claims to. However, it expends far more words to limit the extent of those protections, making them all but worthless to most plaintiffs. Here are some of the many “religious liberty” compromises the bill demands:
Religious organizations are free to discriminate.
All religious or religious-affiliated organizations are exempt from the bill’s provisions related to sexual orientation and gender identity only. A clear attempt to borrow from the “Utah compromise,” this alone guarantees that LGBT protections would be sub-par compared to the state’s other protect classes.
In Utah’s legislation, LGBT activists only supported the religious exemptions for LGBT protections because all other classes were subject to them in the same way. Under Indiana’s bill, LGBT people are very much singled out for less robust protection. This is particularly evident given that the bill also establishes nondiscrimination protections based on veteran status, but does not similarly create religious exemptions based on veteran status.
The bill also copies from the problematic “First Amendment Defense Act” introduced in Congress, offering broad protections for religious organizations from any consequences. It would prohibit any state government agency from taking any “discriminatory action” against a religious organization for acting “in accordance with a religious belief or matters of conscience regarding marriage.”
Such “discriminatory actions” include revoking tax exemption, denying tax deductions, withholding grants or contracts, or denying accreditation or license. Religious organizations are specifically acknowledged to include adoption agencies, nonprofit schools, and any religiously-affiliated organization “that provides social services or charitable services.” In other words, the legislation requires the state to subsidize discrimination, funding organizations with taxpayer money even if they refuse to serve same-sex couples equally.
The bill asserts at the top that all of its exemptions related to sexual orientation and gender identity are to be “liberally construed.”
Small businesses are free to discriminate.
Further enabling special discrimination against LGBT people, the Indiana bill contains special exemptions for businesses with fewer than four full-time employees to refuse to serve same-sex couples. Specifically, they may refuse to provide any goods or services “for any solemnization, rehearsal, reception, celebration, or social event for a marriage ceremony, renewal of marriage vows, or marriage anniversary.”
Similarly, businesses of the same size may refuse to provide “marriage counseling, courses, retreats, and other activities” to same-sex couples without being in violation of the law.
Four employees was not big enough for Monica Boyer, a tea party organizer from Kosciusko County, who told the Indy Star, “If I’m a person of faith and I own a business and I have four employees and I want to add a fifth one, I have to choose government or God.”
Bathroom discrimination may still be allowed.
The bill’s exemption for bathrooms is unclear, but seems to favor the profiling of transgender people to refuse them access.
Businesses may maintain separate restrooms and locker rooms, and may also “establish, use, and enforce rules and policies” related to their usage. They may also enforce dress code rules and policies “based on sex, sexual orientation, or gender identity.” Such rules do not constitute “a discriminatory practice or unlawful separation.”
The bill requires that “gender identity” be proven with at least 12 months of medical care and consistent and uniform assertion of that gender identity in those past 12 months — a burden placed on the individual filing the complaint. It also reinforces the demonizing myths about transgender people by requiring that the identity must be “sincerely held, part of the individual’s core identity, and not being asserted for an improper purpose.”
These bathroom rule allowances may circumvent the nondiscrimination protection to still deny transgender people access to facilities that match their gender. This is further suggested by the bill’s requirement that the attorney general defend any school accused of discrimination in such facilities. A school in neighboring Illinois is currently facing such a complaint.
Cities are prohibited from extending their own LGBT protections.
Borrowing from yet another anti-LGBT policy established in Arkansas earlier this year and Tennessee in 2011, the Indiana bill prohibits local municipalities from passing any protections that extend beyond the state’s limitations. Specifically, “an ordinance may not establish requirements that are more stringent or otherwise are in conflict” with the bill, and any such regulation is “preempted.”
Currently, two counties and seven cities already offer employment protections to the entire LGBT community, and several more offer protections based on sexual orientation alone. Under this bill, they would all be bound by its religious exemptions and other caveats and barred from enforcing anything beyond them.
Victims of discrimination are disincentivized from filing a complaint.
In a novel addition to the other tricks that help enable anti-LGBT discrimination, two different provisions in the bill actually attempts to scare and disincentivize individuals out of filing complaints.
If a complaint is found to be “frivolous” or “intended to harm the subject of the complaint” — terms that are not defined elsewhere — the complainant could be subjected to a $1,000 penalty. Given discrimination cases are often hard to prove to begin with, judges who are so-inclined could start meting out this punishment for cases that fail because of the other religious exemptions or simply because they are not convinced by the merits of the case.
A separate section of the bill dictates that the civil rights commission shall “establish policies and procedures” that protect employers “from unfounded charges of discrimination.” It directs the commission to enforce the bill’s various religious exemptions “to protect the rights of individuals to religious belief and conscience.”
If individuals successfully win a complaint, the bill severely limits what they can receive as compensation. “Monetary damages may not exceed actual damages for losses related to the violation under this article,” it stipulates. In cases of employment discrimination, victims are entitled to no damages beyond lost wages, salaries, commissions, or fringe benefits. There is no significant punishment for the discriminating business in the form of fees or fines.
In other words, Indiana Republicans are proposing legislation that creates nondiscrimination for LGBT people that is as weighted as much against those LGBT people exercising their protections as possible. Lambda Legal decried the bill as a “wolf in sheep’s clothing,” noting, “This doesn’t protect LGBT people — it is a road map for discrimination against LGBT people.”
In an open letter to the governor and legislative leaders, Lambda Legal explained that it could not support legislation that:
- leaves any segment of the LGBT community behind by not offering full, explicit protections;
- treats discrimination against LGBT people differently from other forms of discrimination prohibited under Indiana law, including by the addition of hurtful carve-outs for service providers who wish to refuse to serve LGBT people for religious reasons;
- lessens or waters down protections in existing law for other groups that face discrimination;
- leave out full employment, housing, and public accommodations protections for LGBT people.
The Republicans’ bill easily violates all four tenets, sending a clear signal that LGBT people are not meant to enjoy equal protection under the law, but a second-class status full of exemptions.