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New Anti-Trans Attacks Are Yet Another Reason We Must Reform RFRA

Congress summer
Congress summer
Ian S. Thompson,
Senior Legislative Advocate,
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September 2, 2016

Next week, Congress will be back in session in our nation’s capital. With the election right around the corner, we can expect to see a frenzy of legislative activity. The past several weeks have served as a reminder for why reforming the Religious Freedom Restoration Act of 1993 (RFRA) should be on the agenda of every Member of Congress who supports LGBT equality.

In 2013, Amiee Stephens gave her employer — R.G. & G.R. Harris Funeral Homes in Detroit — a letter explaining that she is a woman and would transition to presenting full-time as a woman. The letter explained that Amiee would soon start to dress in appropriate business attire at work, consistent with her female gender identity. Two weeks later, the funeral home — which had employed Amiee since 2007 — fired her, saying that her gender transition was “unacceptable.”

In 2014, the U.S. Equal Employment Opportunity Commission filed a lawsuit on Amiee’s behalf, alleging that her former employer’s actions resulted in sex discrimination in violation of federal law. The ACLU filed a friend-of-the-court brief in support of the EEOC’s lawsuit.

Unfortunately, on August 18 of this year, a federal judge held that the RFRA entitled the funeral home to fire Amiee. Invoking the Supreme Court’s deeply troubling decision in Hobby Lobby, the court reasoned that RFRA required the EEOC to accommodate the funeral home owner’s discriminatory religious beliefs by requesting that the owner adopt a gender-neutral dress code instead of holding the funeral home accountable for its unlawful discrimination.

By allowing the funeral home to completely escape liability for its actions, the court’s decision gives employers a dangerous new religious exercise argument to justify discrimination against transgender people.

Last week, emboldened anti-trans forces once again invoked RFRA, this time in a lawsuit seeking to discriminate against trans people by denying them health care. On August 23, Texas and four other states — along with the Franciscan Alliance, a Catholic hospital system — filed a lawsuit challenging regulations from the U.S. Department of Health and Human Services that, in part, prohibit discrimination against transgender people in health care.

The rule ensures that trans people can access medically necessary treatment and procedures, have those procedures covered by insurance, and be respected for who they are in medical facilities. Arguing that these protections violate RFRA, the states and organizations who filed the lawsuit object to providing services (or even referrals) for transition-related care or providing insurance that covers such care.

Those opposed to trans rights specifically — and LGBT equality more broadly (not to mention reproductive freedom) — now see in RFRA a way to undermine and attack laws and regulations that prohibit discrimination. While this was not the intention of those who supported RFRA’s passage in 1993, it is what the law is too often used for today, thanks in large part to the Supreme Court’s Hobby Lobby ruling.

Representatives Joe Kennedy (D-Mass.) and Bobby Scott (D-Va.) have introduced legislation in Congress — the Do No Harm Act — that would place a much needed limitation on RFRA to ensure that it can only be used as a shield to protect religious exercise (something the ACLU strongly supports) and not as a sword to harm others. The Do No Harm Act would prevent RFRA from being invoked to justify discrimination, denial of health care, or other harms.

We need to continue to build support for this legislation. As the struggle to win full equality for LGBT people under the law continues, we cannot allow RFRA to continue to be used as sword for discrimination.