RFRA, the “Fix”, gender identity and where we go from here

After a contentious week, the Indiana State legislature passed and Governor Mike Pence signed into law an amendment to SEA 101, the Religious Freedom Restoration Act which threatened Indiana’s economic future after businesses and cities around the United States declared their intention of boycotting Indiana due to the discriminatory potential of the law for the LGBT community.

The language of SEA 101 is here.

The “fix” amendment was raced through the state legislature in committee hearings in both the House and the Senate and signed by the governor behind closed doors, in order to change the news cycle before Indiana’s NCAA Final Four. Prior to the committee hearings, legislators held secret meetings with business leaders and some members of the LGBT community to hammer out the language of the fix, wrangling over what would be included, and how far the language would go to provide protection to lesbian, gay, bisexual and transgender Hoosiers.

Fort Wayne Journal Gazette: GOP brass near deal on religion law

Indiana Chamber of Commerce President Kevin Brinegar said the issue of gender identity was hanging up some lawmakers.

That term refers to a person’s sense of their own gender, regardless of their gender at birth.

“There are some words, I’m not clear if they are in or out,” Brinegar said. “That would make a big difference. I’m encouraged that it is trying to make a definitive statement that this new law cannot in any way be used to discriminate against any group.”

According to some reports, gender identity was considered a negotiable point by some of the representatives of the LGBT community, and non-negotiable by others, who insisted it stay in the language in the face of opposition from lawmakers and business leaders. Indiana Transgender Network intends to follow up on that report over the next few months and ensure that gender identity and the rights of trans and gender-diverse Hoosiers are not considered to be an item on the chopping block by representatives from the LGBT community.

Gender identity was brought up during the committee hearings about the amendment in testimony by Eric Miller, representative from the anti-gay organization Advance America, who helped write RFRA and participated in the crafting of the “fix” language as well. Miller testified that trans people are “men who claim to be women” who threaten women in restrooms and locker rooms, and urged that the amendment to the RFRA law be ignored. This mirrors language Miller has used this week on his blog regarding RFRA and gender identity:

Advance America Quotes

The language of SB 50, the “fix” says, in part:

This chapter does not: (1) authorize a provider to refuse to offer or provide services, facilities, use of public accommodations, goods, employment, or housing to any member or members of the general public on the basis of race, color, religion, ancestry, age, national origin, disability, sex, sexual orientation, gender identity or United States military services; (2) establish a defense to a civil action or criminal prosecution for refusal by a provider to offer or provide services, facilities, use of public accommodations, goods, employment, or housing to any member or members of the general public on the basis of race, color, religion, ancestry, age, national origin, disability, sex, sexual orientation, gender identity, or United States military Service

See the complete language of the revision here.

Analysis from legal scholars says that although the language of the “fix” does mention sexual orientation and gender identity for the first time in Indiana law, it doesn’t cover all Hoosiers, or give complete coverage to the LGBT people it does cover.

Human Rights Campaign Fund notes that while the bill discusses employment, housing and public accommodation, it leaves out healthcare and education:

Healthcare: A private pharmacist could still cite their personal religious beliefs as the reason for denying a legitimate prescription to an LGBT person seeking HIV medication, hormone therapy, or to a lesbian couple seeking fertility drugs.

Education: A parent could still sue an individual teacher for intervening when their child harasses another child that is perceived to be LGBT.

HRC RFRA analysis

Lambda Legal’s analysis is similar:

But, make no mistake, while acknowledging that protections for LGBT people should be enforceable if they exist, today’s proposal does not answer the national call to “fix this now” by enacting them. This proposal fails to add sexual orientation and gender identity to Indiana’s protective framework that currently forbids discrimination based on race, religion, color, sex, disability, national origin and ancestry, leaving LGBT people unprotected across much of the state.

Assuming today’s partial “fix” does take effect, LGBT Hoosiers will remain vulnerable to being fired from their jobs, denied service in restaurants, hotels, and other public accommodations, refused housing, and treated unequally in countless other settings. We call on the legislature and Governor Pence to fix this in full by prohibiting discrimination on the basis of sexual orientation and gender identity. Every Hoosier deserves to be treated with respect.

By amending rather than repealing Indiana’s hastily passed refusal law, state leadership is choosing to retain a law that remains deeply harmful. Religious refusal laws like SB101 tilt the scales in ways that can shift costs, burdens and other harms onto people who are unfairly vulnerable. As one example, today’s proposal does nothing to address many of the concerns described in testimony against SB101 by our client, Amy Sandler, who recently lost her wife, Niki Quasney, to ovarian cancer. Niki’s young cousins, who are genetically at high risk for breast and ovarian cancer, must take oral contraceptives to substantially reduce the likelihood of cancer. As Amy testified, the religious refusal law puts these young women in harm’s way by allowing pharmacists and other health professionals to assert a religious objection to filling their prescriptions, which would cause them harmful delays, difficulty and intense stress. Today’s proposal does not change that.

In short – LGBT Hoosiers need a real civil rights law that protects people from being discriminated against on the basis of sexual orientation AND gender identity.

See Governor Pence speaking about Eric Miller and Advance America.

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