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LGBT Policy Issues

It seems that ever since the U.S. Supreme Court decision in June of 2015 that effectively legalized same-sex marriages, there has been an uptick in the number of proposed and passed laws and regulations in states and cities focusing on LGBT protections and also the protection of those who claim religious opposition to those marriages.

RFRA

Although the federal government and 20 other states already had existing Religious Freedom bills, Indiana made headlines in early 2015 when the state legislature's version was signed by Governor Mike Pence. Opponents claim that specific language allowed for legal discrimination against LGBT individuals by companies or other individuals, something that the federal and most other state laws do not. After an overwhelming backlash - both online and against economic interests in the state - the governor clarified that the law did not allow for discrimination against the LGBT communities in cities that have local non-discrimination ordinances. Many argue that this “fix” did not do enough.

Sixteen states proposed RFRA legislation during the 2015 session, but only two became law – Indiana's and Arkansas'. Twenty-two RFRA proposals in 12 different states were introduced in the first five months of 2016 alone. According to the ACLU, only 18 states have statewide nondiscrimination protections for sexual orientation and gender identity, and just three more for sexual orientation alone. That means that for the remaining states, a RFRA law could allow for legal discrimination of those individuals.

Expanded RFRA

States have now begun introducing RFRA bills that provide more specific provisions to “protect” government agents, individuals, and/or businesses from having to participate in marriage-related services or otherwise engage with LGBT individuals if it is against their religious beliefs. Examples include shielding government agents from being forced to distribute same-sex marriage licenses, private businesses from providing services to same-sex couples (or customers engaging in behaviors outside of the traditional heterosexual marriage), or organizations from having to permit same-sex or other couples to adopt or foster children. Many of these measures have failed, but some have already become law. Florida, for instance, has passed a bill that allows clergy, churches, and other religious organizations to refuse to perform services to marriages to which they have religious objections. (Text and analysis of bill available here.)

Georgia also made a big splash with its modified RFRA, which was ultimately vetoed by the governor. That bill would have allowed religious officials and institutions from having to service or contribute to any marriage ceremonies that violated their free exercise of religion. The measure even went so far as to specifically state that faith-based organizations need not hire or retain certain employees based on their religious views. Many of Georgia’s large employers, such as Coca-Cola, pushed strongly for the governor to veto the law and big-time movie studios like Disney threatened to stop filming there.

Bathroom Bills

North Carolina has been the setting for intense debate over transgender bathroom access for many weeks. After the City of Charlotte passed a local non-discrimination ordinance that protected LGBT individuals from discrimination and also specifically stated that public accommodations were available to people based on their gender identity, the state held a special session to block that measure.

In an emergency session, the North Carolina legislature introduced and passed HB2, sending it to the governor’s desk and achieving signature all within 12 hours. The law prevents local governments from passing nondiscrimination protections for the LGBT community, taking away protections some communities have had for years. It also prevents transgender individuals from using public restrooms and locker rooms of the gender with which they identify unless they’ve gone through surgical and legal procedures to change the gender listed on their birth certificate. Another surprising result of HB2 is that it strips any citizen’s ability to bring discrimination cases (regarding race, age, gender, disability, or other factors) in state court; they must file in federal court instead.

Passage of this law has been met with intense backlash from across the country; businesses larges and small, and also civil rights groups like the ACLU have been pushing hard for changes and even complete repeal. Reminiscent of what happened in Indiana, many companies have stalled or cancelled expansion in the state, musical artists have cancelled their shows, and the NBA is considering pulling the 2017 all-star game from the state.

The federal government has also started to push back against North Carolina’s bill. The Department of Justice issued a letter to the state and to all public schools stating that compliance with HB2 would be in violation of federal non-discrimination laws. Oklahoma's version of the legislation, which would have required school districts to designate restrooms for students who refused to share a restroom with transgender students, failed to pass the House. The Texas Association of Business (TAB) is part of a broad based coalition to Keep Texas Open for Business to oppose the bathroom bills. Conversely, both legislative houses in Massachusetts recently passed measures that add public accommodations to their existing LGBT protections laws. Although there are 17 other states plus the District of Columbia that already have these protections, Massachusetts’ actions during a time of heightened issue awareness and national debate sends a clear message. Once the House and Senate bills are reconciled, the governor is expected to sign.

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Last Updated: 4/23/2017

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