Utah lawmakers
have introduced and are touting a new LGBT nondiscrimination bill that is raising eyebrows among many LGBT advocates because it contains unusually broad religious exemptions. The exemptions included in the bill for discriminating against people based on their sexual orientation or gender identity is, for instance, much broader than the federal religious exemptions included in the Civil Rights Act of 1964 for discriminating against people based on race, color, religion, national origin and in some cases, sex (e.g. sex discrimination is prohibited in employment by federal law).
So here's the question: Is Utah's LGBT nondiscrimination bill simply a license to discriminate masquerading as an LGBT rights bill? Bottom line: it seems that based on the peculiarities of Utah state law, this nondiscrimination bill is passable in Utah but a terrible model for the rest of the country, not to mention any future federal legislation.
So why is it good in Utah? First, Zack Ford explains what the bill does and does not protect:
[T]he bill only protects LGBT people in employment and housing; it does not address public accommodations (e.g. how businesses treat customers). Thus, as a civil rights bill, it pales compared to the more universal protections afforded other classes like race at the national level.
Next, Rose Saxe, a senior staff attorney for the ACLU’s LGBT & AIDS Project,
explains why Utah law is so peculiar:
“Utah already has an incredibly broad religious exemption,” she explained. “Religious organizations are just exempt from the definition of ‘employer’ for all forms of protected discrimination. So nobody can sue them for race discrimination, for age discrimination, for sex discrimination. They’re just not an ‘employer’ for purposes of the employment law in Utah. It is one of the broadest exemptions, if not the broadest, in the country.”
In other words, the Utah bill appears to treat the rights of LGBT residents in a fairly consistent manner to those of other protected classes in the state. Religious institutions and others in Utah are simply allowed to broadly discriminate against people as they see fit.
But for the purposes of other states and, in particular, federal law, this bill would leave LGBT citizens far more vulnerable to religious discrimination than other protected classes are in terms of employment, housing and public accommodations.
As constitutional law scholar and LGBT advocate Tobias Barrington Wolff noted, "The price of equal protection in the workplace and the public marketplace should not be turning religion into a license to discriminate."
And just to revisit this point: currently, no federal law exists that explicitly protects LGBT citizens on the basis of sexual orientation or gender identity in employment, housing, or public accommodations. On a positive note, the courts are now starting to interpret the prohibition on "sex" discrimination included in Title VII of the Civil Rights Act of 1964 as protecting transgender Americans from employment discrimination.