The Heritage Foundation has been called “a driving force” behind the Trump White House due to its many close ties with the administration. This week, Heritage issued a new report drawing a strict line in opposition to any kind of nondiscrimination protection for LGBT people, citing “religious freedom” as such a vital right that any LGBT law would be a burden, regardless of whether it offered even the broadest of religious exemptions.
Heritage’s new report, “How to Think About Sexual Orientation and Gender Identity (SOGI) Policies and Religious Freedom,” takes the position that laws that protect LGBT people from discrimination in employment, housing, and public accommodations would be “unjustified.” To arrive at this conclusion, author Ryan T. Anderson undermines the legitimacy of LGBT identities and dismisses the reality of discrimination that LGBT people experience, shrugging off the consequences of that discrimination.
Anderson’s approach is to simply redefine terms in a way that suits Heritage’s anti-LGBT agenda. Wedding vendors that have been penalized for not serving same-sex couples, for example, weren’t “discriminating” against people because of their sexual orientation, but they simply refused service “because they judged in conscience that they could not endorse certain morally relevant conduct.” This is an argument that courts have roundly rejected, because only gay and bi people would enter a same-sex marriage, so it’s de facto discrimination based on sexual orientation, but the report simply denies that it’s “discrimination” or even “mistreatment” at all.
The Heritage Report also insists that sexual orientation and gender identity are not comparable to traits like race and sex because they are “subjective identities,” and thus not “verifiable.” They can only be defined, the report claims, based on “actions,” such as same-sex weddings or gender confirmation surgeries — not identities that people experience at every moment of their lives. This is nothing short of erasure of the LGBT human experience, diminishing it only to “actions” that religious conservatives can reject as “immoral.” It is in no way an accurate representation of how LGBT people experience their identities — and certainly runs contrary to everything psychology has learned about sexual orientation and gender identity.
Crucial to the report’s thesis is to downplay the extent that LGBT people even experience discrimination. This contradicts numerous studies that have shown rates of discrimination that cannot be characterized by mere anecdotes. The recent massive U.S. Trans Survey, for example, found that nearly 1 in 5 transgender people have lost a job just for being transgender. And statistics like those do not even count the invisible discrimination that takes place; studies like résumé tests are showing that many LGBT people are discriminated against without even knowing it.
State and local laws that do protect LGBT people have been used to counter this kind of discrimination when it’s discovered. But Heritage argues instead that “market forces” can curb discrimination “without the costs and inevitable side effects of heavy-handed legal coercion.” The report’s dependence on the pro-LGBT actions of some of the biggest corporations ignores the day-to-day forms of discrimination LGBT people experience all over.
Many of these talking points are not new. What is unique about the Heritage report is its target audience. There are, essentially, three factions in the fight over LGBT nondiscrimination protections: extreme opposition (like Heritage), complete support (like all major LGBT organizations), and those who support protections with exemptions for religious organizations (groups like the Log Cabin Republicans and moderate conservatives). The report targets the latter group, which frames their approach with the misnomer “fairness for all,” as being insufficient to meet the needs of religious conservatives. Recently the two groups that oppose full protections to some degree held a convening to discuss how to move forward; it would seem Heritage was not convinced by the other side’s arguments that exemptions for religious groups would be enough to protect the “freedom of conscience.”
This Heritage report represents a newly emboldened anti-LGBT right in the Trump era. Though the LGBT movement has rejected religious exemptions since the Supreme Court’s Hobby Lobby decision, Heritage has drawn a new line in the sand by saying that its opposition to LGBT protections is uncompromising and that it is not even open to considering exemptions. It’s nothing short of an admission to what LGBT advocates have been arguing all along: that conservatives are simply using “religious freedom” as a pretext for allowing discrimination against LGBT people.
The report doesn’t mention President Trump or the “religious freedom” executive order he has so far stopped short of signing, but the expectation is clear. And whether he signs that order or not, Heritage could soon get what it wants from Congress instead. Republicans are expected to re-introduce the “First Amendment Defense Act” any day now, which will create a special license to discriminate solely for those who oppose LGBT equality. And President Trump has promised to sign it.