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Last Friday, the Department of Justice revoked a last-minute memo issued by the Trump administration that sought to permit some employers to discriminate against LGBTQ prospective employees based on their religious beliefs.
Greg Friel, the acting head of the Justice Department’s civil rights division, issued a memo revoking one issued only a few days earlier under the Trump administration. The Trump DOJ memo had sought to limit the extent of a recent U.S. Supreme Court decision finding that prohibitions on sex-based discrimination contained in the Civil Rights Act of 1964 protect LGBTQ people from employment discrimination.
According to The Wall Street Journal, the 23-page Trump-era memo said that the principle that anti-LGBTQ discrimination is inherently a form of sex discrimination should not be applied to instances of separate treatment dealing with gender-specific policies, such as restroom use or participation on sports teams.
The memo also tried to carve out additional exemptions for employers that would allow them to discriminate against LGBTQ people, without consequence, if their religious beliefs oppose homosexuality.
“We must hesitate to apply the reasoning of Bostock to different texts, adopted at different times, in different contexts,” former acting Assistant Attorney General John Daukas wrote in that memo. “Unlike racial discrimination, the Supreme Court has never held that a religious employer’s decision not to hire homosexual or transgender persons ‘violates deeply and widely accepted views of elementary justice’’or that the government has a ‘compelling’ interest in the eradication of such conduct.”
But Friel’s memo overturning the previous memo found that the Trump administration’s preferred policy conflicts with an executive order issued by Biden on his first day prohibiting discrimination based on gender identity or sexual orientation, according to Politico.
“I have determined that this memorandum is inconsistent in many respects with the [executive order],” Friel wrote to civil rights division colleagues. “I plan to confer with Department leadership about issuing revised guidance that comports with the policy set forth in the [executive order].”
Biden’s executive order seeks to bar discrimination based on sexual orientation or gender identity, and ensure that the federal government enforces laws prohibiting sex-based discrimination in a way that respects LGBTQ rights.
In practice, embracing that interpretation means the Biden-era Department of Education should be expected to issue guidance prohibiting discrimination against transgender students who are barred from facilities that don’t match their assigned sex at birth, for example. It means that other federal agencies will likely embrace similar guidance intended to ensure LGBTQ employees are targeted for discrimination based on their identity or their failure to conform to sex-based stereotypes.
“Every person should be treated with respect and dignity and should be able to live without fear, no matter who they are or whom they love,” Biden’s executive order states. “Children should be able to learn without worrying about whether they will be denied access to the restroom, the locker room, or school sports. Adults should be able to earn a living and pursue a vocation knowing that they will not be fired, demoted, or mistreated because of whom they go home to or because how they dress does not conform to sex-based stereotypes.
“People should be able to access healthcare and secure a roof over their heads without being subjected to sex discrimination. All persons should receive equal treatment under the law, no matter their gender identity or sexual orientation.”
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