Stanley Carlson-Thies, April 20th, 2017

Should it be illegal for an employer, secular or religious, to treat an employee differently because of the employee’s sexual orientation or gender identity? Or for a college or school, secular or religious, to require students to use the bathroom or locker room corresponding to their sex at birth, even if a student is sure their gender identity is the opposite? Federal civil rights laws ban discrimination based on “sex” in employment (Title VII) and in federally supported educational institutions (Title IX) but do not mention either sexual orientation or gender identity. In that silence, courts and the (Obama) executive branch have created their own protections. Yet this is a task for legislators who are accountable not only to define what the law means but how various rights, including religious rights, should fit together.

The Obama administration’s now withdrawn guidance to public schools to permit students to select a bathroom based on their own sense of their gender identity has been the most visible and controversial instance of a non-legislative body (re)defining what federal civil rights—nondiscrimination—law requires. More significant, though it has not sparked the same heated controversy, is the recent decision of a federal appeals court holding that the Title VII ban on “sex” discrimination in employment also bans discrimination based on “sexual orientation.” A court decision, of course, cannot simply be reversed by the next president; rather, because other federal appeals courts have taken the opposite view, it is likely that the matter will end up before the US Supreme Court for a definitive ruling for the whole nation. Yet, when the courts rule on matters like this, it is not their right role or responsibility to balance rights–their task is purely to interpret the law. Yet the balancing of interests is exactly what needs to be done as federal officials decide what to do about discrimination based on sexual orientation and gender identity.

The recent appeals court decision, Hively v. Ivy Tech Community College, Seventh Circuit, decided April 4, 2017, has drawn public praise from a part of the public for creating a precedent in federal law to protect employees against sexual orientation discrimination by private employers. And it has drawn public criticism from others, who regard it to be the result of a blatant judicial override of the role of Congress. After all, Title VII has from the start banned “sex” discrimination, not “sexual orientation” discrimination; many times Congress has declined to add “sexual orientation” as a protected employee class by refusing to pass any of the Employment Nondiscrimination Act (ENDA) bills that have been proposed—while twice (not dealing with employment) it has explicitly decided that it would protect against sexual orientation discrimination (in a hate crimes law and in the Violence Against Women Act). The court’s claim, nevertheless, that “sex” discrimination encompasses “sexual orientation” discrimination raises serious questions about the right roles and responsibilities of different branches of government. How far can courts go before an overreaching interpretation of a law becomes tantamount to rewriting the law? This case also presents citizens with a difficult question: Should we act according to the plain text of the law (based on what the language meant at the time it was written), or must we guess what a (later) court will decide the law ought to be interpreted to mean, given changing legal and social values?

Congress could step in. One option is to adopt a law defining “sex” discrimination in distinction from “sexual orientation” and “gender identity” discrimination, eliminating the interpretative discretion of courts and executive agencies. A bill like this, HR 5812, the “Civil Rights Uniformity Act,” was proposed in the last Congress and might be proposed again. Yet more legislative clarification is needed than this. Just when, if ever, is differential treatment based on sexual orientation and gender identity permissible and when should it be illegal? Does it matter whether the employer or other organization is secular or if it is religious and has a sincere religious conviction requiring that differential treatment?

In fact, both Title VII, dealing with employment, and Title IX, dealing with educational institutions receiving federal funding, do have religious exemptions so that religious institutions can remain true to their religious convictions. Those exemptions give particular protections when the charge is discrimination on the basis of sex, as Congress specified in these laws. But what do the exemptions protect if the claim is discrimination based on sexual orientation or gender identity? Defining sex more specifically does not answer those increasingly common questions.

In the last Congress, one answer was proposed, though the bill did not advance at all: the Equality Act would add sexual orientation and gender identity protections in all of the basic federal civil rights laws—not relying on courts or the administration to reinterpret those laws—but with minimal protection for religious organizations with counter-cultural convictions concerning human sexuality. Also proposed was the First Amendment Defense Act (FADA), which aims to protect traditional convictions and practices of religious organizations and religious people against government penalties such as loss of tax-exempt status or of a license needed to practice a profession. But FADA’s protections are aimed at protecting traditional convictions about marriage, not counter-cultural convictions about human sexuality more broadly. Moreover, as a general religious freedom bill, FADA does not provide guidance on how LGBT rights should be balanced with religious freedom rights.

To provide such guidance for citizens, organizations, the courts, and executive agencies, legislators will need to set out specifically how to protect religious exercise and religious organizations—hospitals, schools, adoption agencies, drug treatment programs, marriage counselors, day care centers, etc.—when considering how to prevent sexual orientation and gender identity discrimination. That is, instead of only defining more clearly what “sex” discrimination is and is not, and instead of only adopting strong, but general, religious freedom language, Congress needs to consider simultaneously religious rights and LGBT protections. This approach, sometimes called “live and let live” or “fairness for all,” is how lawmakers can guide citizens and organizations to respect each others’ convictions about human sexuality now that our convictions are so diverse.