Stanley Carlson-Thies March 31, 2016

Congress has not chosen to add sexual orientation and gender identity to federal civil rights laws and courts generally have been skeptical of claims that laws that forbid discrimination on the basis of sex also ban discrimination on the basis of sexual orientation and gender identity. If “sex”can be stretched like that, why all the pressure on Congress to add the new categories, for example, to federal employment civil rights laws? Yet the Administration is determined to achieve by regulation what Congress and the courts are not pushing. One in a string of proposed regulations is to change the rules for federal job training programs. IRFA recently joined a critical Comment drafted by the US Conference of Catholic Bishops on this effort.

Other signers onto the Comment are the National Association of Evangelicals, First Liberty Institute, the Christian Legal Society, the Christian Medical Association, Family Research Council, the Ethics and Religious Liberty Commission (Southern Baptists), and the National Catholic Bioethics Center.

The Comment notes that the federal workforce training law specifically prohibits discrimination on the basis of sex in job training and job placement programs that are funded by it. That’s an important protection. But the law, including its current version, adopted by Congress as recently as 2014, declines to add sexual orientation and gender identity as protected classes, despite long years of discussion in the House and Senate about adding such protections.

In those discussions, including past congressional discussion of the proposed Employment Nondiscrimination Act and current congressional attention to the Equality Act and to the First Amendment Defense Act, there has been no broad and lasting consensus on how to protect the religious freedom of religious employers and religious grantees. That is a key reason why other proposed protections have not advanced.

It is, then, particularly inappropriate for the Administration to seek to short-circuit the congressional deliberation process by creating new law by regulations when Congress has declined to legislation.