Issue:  Vol. 48 / No. 7 / 15 February 2018

Spicer hedges on draft executive order in works

by Lisa Keen

Just two days after the White House issued a statement saying, “President Donald J. Trump is determined to protect the rights of all Americans, including the LGBTQ community,” a purported draft for an executive order was leaked that would, if signed, leave LGBT people vulnerable to discrimination in a wide variety of arenas.

(White House press secretary Sean Spicer)

(White House press secretary Sean Spicer)

Asked whether the draft in circulation is one being considered by Trump, press secretary Sean Spicer said at a White House briefing Thursday (February 2), “Right now, there are no executive orders we are able to read out.” He added, however, that there are a “lot of ideas being floated out,” and “input and ideas” being provided “on a variety of subjects.”

But he said, “until the president makes up his mind, there’s nothing going out.”

The answer provided little relief to LGBT legal activists, particularly given that Trump, on Wednesday, met with almost a dozen representatives of right-wing groups, including those with specifically anti-LGBT agendas. And at the National Prayer Breakfast Thursday morning, Trump reiterated his support for eliminating the Johnson Amendment, which prohibits tax exemptions for organizations participating in political activity.

News of a leaked four-page draft executive order was published by the Nation magazine Wednesday, the day after the White House issued a statement saying the president would not rescind an existing executive order prohibiting discrimination based on sexual orientation and gender identity by federal contractors. That statement was issued as rumors were circulating that Trump was getting ready to sign an executive order rescinding the LGBT protections.

But the draft executive order, if approved, would enable federal contractors to claim a religious belief as motivation for discriminating against LGBT employees.

Jenny Pizer, a senior attorney with Lambda Legal Defense and Education Fund, told the Nation that the proposed executive director would violate the Constitution’s establishment clause and equal protection clause.

The language of the proposed executive order appears to seek some of the requests made by some religious organizations to the Obama administration when it devised regulations last year related to the Affordable Care Act’s prohibition on sex discrimination, saying they include discrimination based on gender identity. Health and Human Services noted at the time that, “Some religious organizations … strongly supported a religious exemption, arguing that faith-based health care providers and employers would be substantially burdened if required to provide or refer for, or purchase insurance covering, particular services such as gender transition services.”

Certain other language in the draft appears directed toward enabling organizations, such as Catholic Charities, to obtain federal funding despite discrimination against same-sex couples as potential adoptive parents. The draft executive order prohibits the federal government from taking “any adverse action against a religious organization that provides federally-funded child welfare services, including promoting and providing adoption, foster, or family support services for children … on the basis that the organization declines to provide… such services due to a conflict with the organization’s religious beliefs.”

And with regards, presumably, to the Johnson Amendment, the draft order enables religious organizations to speak on “moral or political issues” without jeopardizing their tax-exempt status.

The draft obtained by the Nation is entitled “Executive Order – Establishing a Government-Wide Initiative to Respect Religious Freedom.” It purports to protect not only religious institutions but also “persons of all faiths” in “all activities of life,” including “closely held for-profit corporations operated for a religious purpose, even if its purpose is not exclusively religious. …”

It protects the tax-exempt status for organizations who speak or act “in accordance with the belief that marriage is or should be recognized as the union of one man and one woman, sexual relations are properly reserved for such a marriage, male and female and their equivalents refer to an individual’s immutable biological sex as objectively determined by anatomy, physiology, or genetics at or before birth, and that human life begins at conception and merits protection at all stages of life.”

And it states, “All agencies shall promptly withdraw or rescind any rulings, directives, regulations, guidance, positions, or interpretations that are inconsistent with this order to the extent of their inconsistency.”

During the Thursday press briefing, Spicer said the president and vice president believe that current regulations and laws have “denied people the ability to live according to their faith” and that the “president wants to make sure we don’t penalize someone for wanting to express their faith.””

Rea Carey, executive director of the National LGBTQ Task Force Action Fund, said the proposed executive order would have “an immediate and chilling impact on every aspect of our lives” and amounts to “a charter for widespread and divisive discrimination, against LGBTQ people.”

“If this leak is accurate, and he signs this or a similar order,” said Carey, “it will be a truly devastating day for American freedoms.”

— Cynthia Laird, February 2, 2017 @ 12:12 pm PST
Filed under: Uncategorized

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