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Feds hastily make religious carve-outs to regulations before Trump’s exit

Federal agencies are hurriedly finalizing regulations that would enable anti-LGBTQ discrimination.

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President Donald Trump at a campaign rally. (Photo Credit: BigStock)

WASHINGTON – With time running out for the Trump administration, federal agencies are hurriedly finalizing regulations granting leeway to religious institutions that are federal grantees and contractors, which critics say — and internal emails the Blade obtained exclusively through a FOIA lawsuit suggest — blur the line between church and state and would enable anti-LGBTQ discrimination.

Two religious freedom rules that have gone into effect within the past two weeks — in addition to an initial production of emails sought by the Blade obtained under the Freedom of Information Act — confirms restructuring federal regulations to grant more leeway to religious institutions has been a central focus of the Trump administration throughout its four years.

Rachel Laser, CEO of Americans United for Separation of Church & State, said in a statement to the Blade she’s “disappointed, though not surprised” the Trump administration would act quickly to make these regulations final in lame duck before Trump leaves the White House.

“President Trump spent four long years pandering to his Christian nationalist base, which has too often succeeded at securing government policies that open the door to religion-based discrimination against LGBTQ people, women, religious minorities, nonreligious people and others,” Laser said. “These policies are a last-gasp effort by the outgoing administration to ignore the will of the people who rejected Trump’s policies on Nov. 3.”

One rule the Department of Labor made final last week, a proposed regulation that had been pending since August 2019, expanded the religious carve-out in rules prohibiting discrimination in employment practices, essentially allowing any federal contractor to claim an exemption to engage in workplace discrimination, including anti-LGBTQ discrimination. (Federal contractors are still barred from workplace discrimination under Title VII of the Civil Rights Act of 1964.)

On Monday, the Trump administration followed up by making final a whopping 400-page, nine-agency rule that has been pending since January instructing federal contractors to disperse grants and sub-grants to churches and religious organizations as well as secular groups.

Previously, there had to be secular alternatives available for indirect providers of social services, such as food kitchens or homeless shelters, if they require participation in religious activities as a condition of receiving services. Also, direct providers of services had to provide notice that beneficiaries are entitled to secular providers if they prefer, and have referrals available to secular alternatives for the services they provide. 

The Trump administration’s changes lift the notice and referral requirement for direct service providers as well as the need for secular alternatives when the funding goes indirectly to providers who require participation in religious activities. The LGBTQ legal group Lambda Legal criticized the rule change in a statement as “elevating ultra-conservative religious interests above everyone else’s basic rights.”

Because these regulations went through a rule-making process, the Biden administration won’t be able to easily undo them under the Administrative Procedure Act, which requires the U.S. government to undertake a deliberative process and engage with the public before making regulatory changes. It would take another rule-making process or several months or more than a year to undo them.

White House Deputy Press Secretary Judd Deere defended federal agencies making these rules final before Trump leaves office.

“The American people elected Donald Trump as president for a four-year term, not until Nov. 3, 2020,” Deere said. “President Trump’s first term goes until Jan. 20, 2021 as prescribed by the U.S. Constitution and he has every right to continue to advance policies that fulfill the commitments and promises he made to the country just as every president before him has done.”

FOIA dump reveals differing views on religious carve-outs

The Blade’s FOIA lawsuit, which was filed September in the District Court of D.C. and sought internal emails with words “religion” and “religious” from the Labor Department’s Office of Federal Contract Compliance Programs, yielded its first results last week.

The emails reveal Debra Carr, who has been serving as director of policy for OFCCP, appeared to want nothing to do with regulatory changes proposed by Trump political appointees and signaled that view — sometimes gently, sometimes not so gently — in the email chains.

According to her bio, Carr joined OFCCP after serving as an attorney for the U.S. Commission on Civil Rights. Among the reports she wrote were those evaluating the Native American healthcare system and the need to reauthorize the Indian Healthcare Improvement Act; assessing the effectiveness of the No Child Left Behind Act; and reviewing the usefulness of Executive Order 12898 and Title VI as tools for achieving environmental justice.

Carr also worked as a civil rights lawyer at the U.S. Justice Department White House office and headed a White House office representing the United States at the United Nations on issues related to racism and xenophobia, her bio says.

In response to language for a proposed 2017 executive order President Trump would sign on religious liberty, Carr, when pressed for input, writes in an email dated May 2, 2017: “I haven’t looked at what this means in application related to LGBT enforcement and the existing religious exemption.”

In an earlier part of the email chain, Carr says she and the solicitor of labor agree on some language components, but instructs officials she “won’t sign off unless you clear these joint comments.” Carr adds if that language isn’t cleared she “will reply ‘no comment, defer to SOL for legal opinion’ or just ‘no comment.’”

The clearance Carr sought, however, apparently never came. In a subsequent email, Carr makes good on her threat and writes, “OFCCP has no programmatic comment but defers to SOL for substantive legal review and comment.”

In a separate exchange, Carr expresses displeasure after she received as part of the comment process for rule changes an email from Ché Walker, who identifies as “Citizen of the United States of America” and urges the Labor Department not to change regulations to allow religious institutions that accept federal money to engage in discriminatory practices.

“Not sure why I got this,” writes Carr. When a staffer explains to her it came to her in error and should be directed elsewhere in the Labor Department, Carr replies, “This is the second one.”

The staffer replies OFFCP is coming up with “a blanket response” to allow her to point respondents to the right portal, but Carr wasn’t having it.

“Sorry, no time to reply to them I’ve got enough email in my inbox to get through,” Carr writes. “As long as the NPRM is correct you guys are covered.”

The Labor Department didn’t respond to a request for comment for this article, nor did Carr through the Labor Department.

Many emails in the 175-page initial production are heavily redacted. The Labor Department concealed personal contact information and cited deliberative language claims to redact other content.

FOIA, however, was amended in 2016 to clarify federal agencies cannot redact deliberative language without demonstrating revealing that information would cause “foreseeable harm.” The Blade, represented by attorneys at the Reporters Committee for Freedom of the Press, will have the opportunity to challenge these redactions once the FOIA production is complete.

One such heavily redacted email reveals OFCCP was planning to have a meeting with the National Center for Transgender Equality on Aug. 28, 2018. That would have been shortly after the Labor Department issued a memo seeking to bring regulations in compliance with the U.S. Supreme Court’s decision in the Masterpiece Cakeshop case, which critics at the time said was unnecessary because the narrow ruling applied only to the specifics of that case.

Carr alerts OFFCP officials, including OFFCP Director Craig Leen, to potential issues NCTE may bring up at the meeting, but those talking points are completely redacted in the FOIA production. NCTE didn’t respond to repeated requests from the Blade to comment on this planned meeting.

A transgender advocate familiar with the meeting, who spoke on condition of anonymity, said other LGBTQ and civil rights groups were in the meeting, which was focused on the 2018 directive.

“As I recall, the directive was incredibly vague and sweeping in its language so we came with a bunch of tough questions, which may have been what this email was about,” the advocate said. “Those questions would’ve been pretty much along the lines of what was aired in comments on the rule that they just finalized.”

The transgender advocate said Leen was “still pretty new there,” so part of the meeting was to “get a sense of how bad he would be, and make sure he understood the legal and political risks of going backwards -— as advocates often do when new agency leaders come in whom they can presume to be hostile to their priorities.”

The FOIA dump also reveals Sen. James Lankford (R-Okla.), a longtime opponent of LGBTQ non-discrimination policies who this year cited J.K. Rowling on the Senate floor to block consideration of the Equality Act, has been the driving force pushing the Trump administration to adopt more expansive religious exemptions.

One Feb. 18, 2018 email from an OFFCP staffer details the correspondence between Lankford’s staff and the agency. According to the email, Lankford sent a letter in June 2017 on the scope of the religious exemption for federal contractors, then when OFFCP responded, Lankford’s legislative counsel, Sarah Seitz, responded in July 2017 “she had concerns and questions with the response.”

After former U.S. Attorney General Jeff Sessions issued in October 2017 guidance directing federal agencies to include religious liberties in enforcement of laws and policies, including non-discrimination provisions, Seitz sent another letter seeking clarification on the same religious exemption in light of the guidance, the email says.

Additional correspondence followed, as well as a meeting between OFFCP officials and Lankford staff on Jan. 17, 2018, and another meeting that was tentatively planned for March 6, 2018, the email says.

Despite Lankford’s push to expand the religious exemption for federal contractors, additional emails in the FOIA dump reveal the agency and the senator had difficulty identifying a single religious institution that wanted the change, or at least publicly wanted to be the face of it.

In response, a Jan. 17, 2018 email from one staffer who wanted “to ensure all faith-based organizations that are contractors/potential contractors are invited” to the Lankford meeting, another staffer asks if the senator had mentioned “any particular religious entities during your meeting that are federal contractors and that we should invite to the contractor stakeholder session.”

“No, Sen. Lankford did not specify any faith-based organization in particular,” the OFCCP staffer replied, then continued with language the Labor Department redacted in the FOIA dump as deliberative.

Lankord’s office didn’t respond to the Blade’s request to comment on why the senator has been so insistent on pushing for religious exemptions.

One religious institution revealed in the FOIA dump to have come forward to a suggest a desire for an expanded exemption under non-discrimination regulations was Brigham Young University, which has a history of anti-LGBTQ discrimination.

Steven Sandberg, deputy general counsel for BYU, appears in a March 6, 2018 email to test the waters to see how far it can get with the religious exemption by complaining its contracts are “mostly done by contracting officers (not lawyers) in the offices of acquisition/grants/research/etc.”

“After several attempts like these, in 2016 we stopped trying to add this type of language in the contracts in because they either slowed or completely stopped the contracting process, and they rarely resulted in revised language being added to the contracts,” Sandberg wrties. “We decided instead to carry the risk and be ready to defend ourselves if challenged.”

Sandberg points out the religious exemption to employment non-discrimination rules for federal contractors during the Obama years allowed religious institutions to favor co-religionists in hiring practices. Suggesting BYU interprets that exemption broadly in a way that might conflict with rules, including LGBTQ non-discrimination requirements, Sandberg writes, “BYU continues to carry the risk that ‘of a particular religion’ will be construed narrowly and adversely to BYU.”

Copied on the email exchange is a lawyer for Becket Law, a legal firm that seeks to enhance religious liberty claims and currently has pending before the U.S. Supreme Court a case that seeks a First Amendment right for Catholic Social Services to reject same-sex couples in taxpayer-funded foster care despite having signed a contract vowing not to engage in anti-LGBTQ discrimination.

Brigham Young University didn’t respond to a request for comment for this article, nor did the Becket Law firm.

More religious carve-outs could be on the way

Additional opportunities remain for the Trump administration to finalize rules weakening non-discrimination requirements in the name of religious freedom.

One pending regulation, if made final, would eliminate an Obama-era requirement that recipients of federal grants adhere to non-discrimination principles, effectively allowing these grantees to discriminate in adoption and health care settings against LGBTQ people. The Trump administration proposal would allow adoption agencies that receive federal funds to refuse to place children with same-sex parents.

Another regulation, proposed by the Department of Housing & Urban Development in July, would weaken Obama-era regulations to allow taxpayer-funded homeless shelters to refuse to accept transgender people seeking refuge consistent with their gender identity, including on the basis of religious grounds. Rep. Jennifer Wexton (D-Va.) has been outspoken against the proposal.

It remains to be seen whether the Trump administration will make final either regulation. The White House had no comment.

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Louisiana Governor John Bel Edwards vetoes trans youth sports bill

Discrimination is not a Louisiana value, and this bill was a solution in search of a problem that simply does not exist in Louisiana

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Louisiana Governor John Bel Edwards (D) (Official state portrait)

BATON ROUGE – Louisiana’s Democratic John Bel Edwards announced Tuesday that he has vetoed a measure that would have barred trans girls and women from participating on athletic teams or in sporting events designated for girls or women at elementary, secondary and postsecondary schools. 

The measure, Senate Bill 156 authored by Sen. Beth Mizell titled the ‘the Fairness in Women’s Sports Act,’ in the Governor’s eyes, “was a solution in search of a problem that simply does not exist in Louisiana,” Edwards said in his veto statement;

“As I have said repeatedly when asked about this bill, discrimination is not a Louisiana value, and this bill was a solution in search of a problem that simply does not exist in Louisiana. Even the author of the bill acknowledged throughout the legislative session that there wasn’t a single case where this was an issue. 

Further, it would make life more difficult for transgender children, who are some of the most vulnerable Louisianans when it comes to issues of mental health. We should be looking for more ways to unite rather than divide our citizens. And while there is no issue to be solved by this bill, it does present real problems in that it makes it more likely that NCAA and professional championships, like the 2022 Final Four, would not happen in our state. For these and for other reasons, I have vetoed the bill.”

The Baton Rouge Advocate newspaper’s State House reporter, Blake Paterson, noted that [the law] would have required athletic teams or sporting events for women at public institutions be composed only of “biological females,” or those who presumably were listed as female on their birth certificates.

The measure won Senate approval 29-6 and cleared the House 78-19. Those margins are wide enough to override a governor’s veto, though it’s unclear whether lawmakers will return to Baton Rouge to do so.


“Governor Edwards deserves enormous credit for urging Louisianans to reject the politics of division and to focus on what brings us together, including a shared concern for vulnerable children. As his veto message rightly notes, transgender youth already face huge challenges,” Shannon Minter, the Legal Director for the National Center for Lesbian Rights, (NCLR) told the Blade in an email. “Banning them from school sports would not make any child’s life better or safer, but it would bring discredit and economic hardship to the state, which likely would lose NCAA and professional championships. Governor Edward’s veto message is a model of clarity and compassion. We need more leaders with his courage.”

The ACLU reacted in a tweet saying:

 

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Anti-LGBTQ religious extremist celebrates death at Wilton Manors Pride

Mehta points out this type of rhetoric is quite likely to inspire violence against the LGBTQ community by one of Shelley’s followers

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Screenshot vis Twitter

HURST, Tx. – The pastor of a fundamentalist Baptist Church in this suburban Fort Worth, Texas city took to his pulpit to celebrate the death of an attendee at the Wilton Manors, Florida Pride parade this past weekend.

Pastor Jonathan Shelley, whose church is affiliated with infamous “death to gays” Pastor Steven Anderson in Phoenix, Arizona is quoted by Patheos writer and progressive blogger Hemant Mehta saying; […]”I hope they all die! I would love it if every fag would die right now.” […]

Mehta, who runs the heavily trafficked The Friendly Atheist, also noted that Shelley told his congregants; “And, you know, it’s great when trucks accidentally go through those, you know, parades. I think only one person died. So hopefully we can hope for more in the future.”

Mehta noted that the video of Shelley’s hate-filled remarks on this and other anti-LGBTQ vitriol is still accessible on Shelley’s YouTube Channel. He also points out this type of rhetoric is quite likely to inspire violence against the LGBTQ community by one of Shelley’s followers.

The Blade has reached out to YouTube Tuesday for comment but has yet to receive a response.

Editor’s note; The language used in the video in the embedded tweet below is uncensored hate speech:

In a related update from the Daily Beast, Fred Johnson Jr., who was named by Wilton Manors police as the driver of the vehicle that veered out of control killing one person and injuring two others at Saturday’s Stonewall Pride Parade has offered his “sincere regrets to all those who were impacted by this tragic event.”

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Vigil held after Wilton Manors Pride parade accident

Fort Lauderdale mayor expressed ‘regret’ over initial terrorism claim

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A vigil in the wake of the accident at the Stonewall Pride Parade took place at the Sunshine Cathedral in Fort Lauderdale, Fla., on June 20, 2021. (Washington Blade photo by Yariel Valdés González)

FORT LAUDERDALE, Fla. — More than 100 people on Sunday attended a prayer vigil in the wake of an accident at a Wilton Manors Pride parade that left one person dead and another injured.

The vigil took place at the Sunshine Cathedral in Fort Lauderdale.

Clergy joined activists and local officials at a vigil at the Sunshine Cathedral in Fort Lauderdale, Fla., on June 20, 2021. (Washington Blade photo by Yariel Valdés González)

A 77-year-old man who was driving a pickup truck struck two men near the Stonewall Pride Parade’s staging area shortly before 7 p.m. on Saturday. One of the victims died a short time later at a Fort Lauderdale hospital.

The pickup truck narrowly missed U.S. Rep. Debbie Wasserman Schultz (D-Fla.), who was in a convertible participating in the parade, and Florida Congressman Ted Deutch.

The driver of the pickup truck and the two men he hit are members of the Fort Lauderdale Gay Men’s Chorus. The Fort Lauderdale Police Department on Sunday described the incident as a “fatal traffic crash” and not a terrorism incident as Fort Lauderdale Mayor Dean Trantalis initially claimed.

“As we were about to begin the parade, this pickup truck, this jacked up white pickup truck, dashed across, breaking through the line, hitting people, all of us that were there could not believe our eyes,” said Trantalis as he spoke at the vigil.

Trantalis noted the pickup truck nearly hit Wasserman Schultz. He also referenced the arrest of a 20-year-old supporter of former President Trump earlier in the week after he allegedly vandalized a Pride flag mural that had been painted in an intersection in Delray Beach, which is roughly 30 miles north of Fort Lauderdale.

“I immediately knew that something terrible was happening,” said Trantalis, referring to the Stonewall Pride Parade accident. “My visceral reaction was that we were being attacked. Why not? Why not feel that way?”

“I guess I should watch to make sure there are no reporters standing by when I have those feelings, but that was my first reaction and I regret the fact that I said it was a terrorist attack because we found out that it was not, but I don’t regret my feelings,” he added. “But I don’t regret that I felt terrorized by someone who plowed through the crowd inches away from the congresswoman and the congressman, myself and others.”

Trantalis also told vigil attendees that “I guess we forgive” the pickup truck driver.

“But I regret that his consequences resulted in the death of an individual who was innocent and who was there to have a good time, like the rest of us, and I regret there is a man who is in serious condition … fighting for his life and there,” added Trantalis.

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