Republicans in Congress have indicated that they like what’s been happening in North Carolina and want to see some of the same anti-LGBT discrimination at the federal level. Last week, they added an amendment to the National Defense Authorization Act intended to roll back LGBT protections introduced by the Obama administration in 2014 in a way that mirrors North Carolina’s HB2.
Rep. Steve Russell (R-OK) introduced his amendment shortly after midnight Friday morning in the House Armed Services Committee. Though the text of his measure does not specifically mention sexual orientation and gender identity, it is that absence that actually defines what he hoped to accomplish with it.
Federal law does not explicitly offer any protections in employment, housing, or public accommodations to LGBT people, though some oversight has been inconsistently secured under protections based on “sex”. That’s why in 2014, President Obama issued an executive order declaring that any entity that contracts with the United States must have a policy protecting its LGBT employees. Though it did not protect all workers across the country, it still impacted some 28 million employees at some 30,000 companies and also incentivized some to establish inclusive policies that previously did not exist — most notably at ExxonMobil.
Russell’s amendment is seemingly designed to override that order, as he confirmed in the discussion that followed its introduction. It specifically stipulates that when the Federal Government establishes any kind of contract or financial relationship with any religious-identified entity, it must “provide protections and exemptions consistent with… the Civil Rights Act of 1964 and… the Americans with Disabilities Act of 1990.”
In this case, “consistent with” would seem to imply “limited to only” as well; thus, because those two laws do not explicitly protect LGBT people, the amendment would prevent the Obama administration (or any future administration) from doing so in practice. It’s not, however, entirely clear if Russell’s amendment would do what he claims it would do — as many experts believe that protections against LGBT discrimination are already implicit in the Civil Rights Act.
Nevertheless, the parallel to North Carolina is uncanny. Though HB2 has primarily been scrutinized for the restriction it places on what restrooms transgender people can use, it also contains a provision overturning LGBT protections at the municipal level. Like similar laws that have passed in Tennessee and Arkansas in recent years, it’s now illegal in North Carolina for a city or county to establish nondiscrimination policies that protect classes not protected at the state level. Because North Carolina state law does not protect “sexual orientation” or “gender identity,” nor can any local law.
A growing coalition of LGBT, secular, legal, and religious organizations has come out against Russell’s amendment. “This amendment would authorize taxpayer-funded discrimination in each and every federal contract and grant,” the groups wrote last week. “The government should never fund discrimination and no taxpayer should be disqualified from a job under a federal contract or grant because he or she is the ‘wrong’ religion.”
This is not the first time Congressional Republicans have attempted to use the defense legislation to advance anti-LGBT measures. Previous proposals have included a “license to discriminate” within the military (which ended up passing as a watered-down “conscience clause”), a ban on same-sex weddings on military bases, and a ban on military chaplains officiating same-sex weddings.
Russell’s amendment passed 33–29 on a mostly party-line vote in the House Armed Services Committee, which advanced the full defense bill to the House floor. Given the Senate has not yet even begun consideration of its version of the bill, the fate of the amendment is far from decided.