Final LGBT Anti-Discrimination Rule Issued Without Soliciting Public Comment; Religious Freedom Issues Still Unclear

(Photo: Reuters/Larry Downing)U.S. President Barack Obama waves before he signs an Executive Order to protect LGBT employees from workplace discrimination while in the East Room at the White House in Washington, July 21, 2014.

A religious freedom advocacy organization has expressed concern over the U.S. Labor Department's forthcoming new rule against LGBT discrimination among federal contractors, which was submitted for review without public comment and contains little guidance for faith-based federal contractors.

The Institutional Religious Freedom Alliance believes the Labor Department rule, meant to implement President Barack Obama's recent executive order barring discrimination on the basis of sexual orientation and gender identity for federal contractors, does not currently clarify the rights of faith-based organizations.

The rule was sent last week to the Office of Information and Regulatory Affairs (OIRA), which is within the Office of Management and Budget, for review. The rule is not yet published, but IRFA has learned that the rule will offer little guidance to faith-based groups with government contracts.

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(Photo: Public Domain)Thomas Perez, Secretary of the Department of Labor.

In its newsletter, the IRFA noted that the rules currently being reviewed lack "regulatory guidance on how the new prohibitions affect the religious-staffing exemption that is already in the regulations."

Additionally, Labor uncustomarily submitted the final regulations without soliciting public comments on any proposed regulations.

"Rather than issue proposed regulations and solicit comment, [Labor] submitted final regulations--no commenting and no changes — for a technical review by OIRA, which considers items such as whether or not the regulations have a significant negative economic impact, require too much paperwork, etc.

"How is this possible?" IRFA wondered.

IRFA recommends that faith-based groups with federal contracts inform the Labor Department of any concerns they may have.

"Faith-based organizations that have been, or intend to become, federal contractors, subcontractors, or vendors should be preparing now to make their views known to the Department of Labor."

IRFA suspects that after the rule is published public comments will be solicited and, in response to those comments, the Labor Department will publish additional materials, like a fact sheet, to provide guidance to faith-based groups on how the rule affects them.

Earlier this month, the Labor Department finalized a proposed LGBT anti-discrimination rule for federal contractors in response to President Obama's Executive Order 13672, which was signed in July.

In July, Obama signed an executive order barring discrimination on the basis of sexual orientation and gender identity for companies that have contracts with the federal government.

Known as EO 13672, it amended the older EO 11246, which had barred companies with federal contracts exceeding $10,000 to discriminate on the basis of race, religion, sex, or national origin, to include sexual orientation and gender identity.

The order had come in response to the U.S. Congress' stalling on similar proposed legislation called the Employment Non-Discrimination Act (ENDA).

Groups like the Human Rights Campaign hailed the Obama executive order as a major step forward in LGBT rights.

"With the stroke of a pen, the president will have a very real and immediate impact on the lives of millions of L.G.B.T. people across the country," stated HRC President Chad Griffin.

"These actions from the president have the potential to be a keystone in the arch of his administration's progress, and they send a powerful message to future administrations and to Congress that anti-L.G.B.T. discrimination must not be tolerated."

Others criticized the executive order, arguing that it lacked sufficient religious liberty protections for those with federal contracts who may be morally opposed to homosexuality or transgenderism.

Peter Sprigg, senior fellow for Policy Studies at the Family Research Council, said in a remarks given to Todd Starnes of Fox News that he opposed the executive order.

"If religious organizations cannot require that their employees conduct themselves in ways consistent with the teachings of their faith – then, essentially, those organizations are unable to operate in accordance with their faith," said Sprigg.

"This level of coercion is nothing less than viewpoint blackmail that bullies into silence every contractor and subcontractor who has moral objections to homosexual behavior."

According to a White House fact sheet, an executive order issued by his predecessor that allows religious groups to only hire those who share their religious convictions will be maintained.

"President Obama's Executive Order does not allow for any exemption beyond the one added by Executive Order 13279, issued by President George W. Bush, which permits religiously affiliated contractors to favor individuals of a particular religion when making employment decisions," read the fact sheet.

"In addition, under the First Amendment, religious entities are permitted to make employment decisions about their ministers as they see fit."

How, exactly, that exemption will still apply in relation to the new rule on sexual orientation and gender identity is still unclear, however.

The executive order also "governs only federal contractors and federally-assisted construction contractors and subcontractors who do over $10,000 in Government business in one year."

"It does not affect grants and President Obama's Executive Order does not impact the administration of federal grants," added the White House.

There is presently no timetable for when the Labor Department will implement the rule, according to Buzzfeed.