Congress just killed legislation allowing LGBT workers to be fired — but anti-gay discrimination under Trump is here to stay

The Russell Amendment is dead, but threats from an incoming administration most notable for intolerance are real

Published December 1, 2016 11:58PM (EST)

 (AP//Jacquelyn Martin)
(AP//Jacquelyn Martin)

A provision that would have allowed LGBT people to be fired from their jobs has been struck from a defense spending bill passed by the House of Representatives earlier this year.

The National Defense Authorization Act, which got a thumbs up from the Republican-controlled House in May, until recently included an amendment that would have given federal contractors the right to discriminate against employees based on sexual orientation or gender identity. Known as the Russell Amendment, the bill has been stalled in committee for months after the House and Senate were unable to agree on a final draft of the legislation. On Tuesday the Washington Blade reported that the provision had been killed.

The Russell Amendment, which was named for its sponsor, Rep. Steve Russell, R-Okla., was drafted in response to an executive order passed in 2014 by President Barack Obama. Executive Order 13672, which prohibited the firing of federal employees because of their LGBT identity, reportedly affected 28 million Americans. By effectively repealing those protections, those workers would have been at risk if the bill were passed.

This victory would be a proper cause for celebration if the incoming administration wasn’t already emboldening the forces of intolerance across the country, a message of anti-LGBT hate that’s especially potent during a time of enormous backlash to recent civil rights gains.

The provision is notably similar to bills passed in Mississippi and Indiana that let businesses and employers discriminate on the basis of “sincerely held religious belief.”

The Magnolia State passed House Bill 1523 in March, a “religious liberty” bill that would have affected a number of disparate groups. The legislation would have allowed medics to deny services to a transgender person who had experienced a heart attack and was in need of treatment. A landlord could deny the housing application of an unmarried couple. An employer could even terminate a female worker for having short hair or wearing pants in the office, as hypothesized by ThinkProgress.

These scenarios might seem absurd but are not out without precedent: A bartender was fired in Nevada in 2004 for not wearing makeup during her shift.

This opportunity for broad-based discrimination in Mississippi was struck down by a federal court in June, when HB 1523 was blocked by a federal ruling by U.S. District Court Judge Carlton Reeves. Reeves claimed that the law failed to “honor [America’s] tradition of religion freedom, nor does it respect the equal dignity of all of Mississippi’s citizens.”

A similar law in Indiana, known as the Religious Freedom Restoration Act, was amended after passage last year. The law led to more than $70 million in economic losses following a nationwide corporate boycott of the state.

Despite these bills’ defeat, Russell maintained that pushing a nearly identical law at the federal level was necessary to protect “the free exercise of religion.”

“More than 2000 federal government contracts a year are awarded to religious organizations and contractors that provide essential services in many vital programs,” the Oklahoma lawmaker claimed in a May speech delivered on the floor of the House. “Now many of these services are being impacted due to conflicting and ambiguous executive guidance. The groups under assault are often the best, if not the only, organizations able to offer the assistance they perform.”

The Russell Amendment would have expanded the Civil Rights Act of 1964, which prohibits discrimination on the race, color, religion, sex or national origin, to offer protections for religiously affiliated groups that do business with the government. Because sexual orientation and gender identity are not yet protected under the landmark bill, such a law could technically be enacted.

Congressional Democrats fought the provision, warning that the definition of what comprises a faith-based organization is so broad that any number of groups could claim religious affiliation to exploit the legislation.

A group of 40 Senate Democrats, joined by two independents, penned a letter in October voicing opposition to the Russell Amendment’s passage.

“This discrimination erodes the freedoms that our military has fought for generations to protect,” the letter read. “It would particularly harm women, as religiously-affiliated contractors and grantees would be able to discriminate against individuals based on their personal reproductive health care decisions, including using birth control, becoming pregnant while unmarried, using in vitro fertilization to conceive a child, and accessing other reproductive health care that otherwise violate particular religious tenets.”

A coalition of political lobby groups opposed to the bill, including the Human Rights Campaign, American Civil Liberties Union, Center for American Progress Action Fund, American Military Partner Association and Americans United for Separation of Church and State collected signatures against it. More than 320,000 people signed the petition.

The organizations, though, particularly placed pressure on Sen. John McCain to block the Russell Amendment. McCain, who serves as the chair of the Senate’s Armed Services Committee, had been instrumental in preventing the passage of a similar “religious liberty” bill in Arizona two years ago: State Bill 1062 faced a backlash from corporate leaders, including the National Football League, that would have led to an estimated $140 million blow to the state’s economy.

After McCain urged Arizona Gov. Jan Brewer to veto SB 1062, which had passed the state’s House and Senate, she did just that.

The lobbying efforts appear to have been successful once again. A congressional aide told the Blade that Republicans had backed off the Russell Amendment, claiming that the provision was “always an imperfect remedy” to the nationwide battle over religious protections. The anonymous source did add, however, that the fight isn’t over. “Subsequent to the election, new paths have opened up to address those issues,” he said.

While LGBT rights advocates might claim the failure of the Russell Amendment a victory, that last sentence is an eerie reminder of the challenges that queer people will face under a Donald Trump presidency.

On his first day in office, the president-elect has vowed to do the very same thing that the Russell Amendment authorizes: overturn of protections for federal LGBT contractors. During the 2016 presidential race, Trump vowed to overturn Obama’s executive orders. The president-elect has yet to back off that pledge (unlike his recent flip-flops on an Affordable Care Act repeal, which had been central tenet of his campaign, and assigning a federal prosecutor to imprison his former challenger Hillary Clinton).

In allowing for discrimination against LGBT workers, Trump will likely have the support of his vice president, Mike Pence. As the governor of Indiana, Pence personally signed into law the Religious Freedom Restoration Act. In a 2015 interview with George Stephanopoulos of ABC’s "This Week," Pence defended the law, claiming that it was “absolutely not” a mistake.

Aside from his running mate, Trump’s White House appears to be stacked with figures who have made a name for themselves by opposing equal rights for LGBT people.

Milwaukee County Sheriff David Clarke, a front-runner to helm the Department of Homeland Security, has claimed that trans people “suffer from mental disorders” and live a “freakish lifestyle.” Betsy DeVos, tapped to head up the Department of Education, donated $200,000 to a 2004 effort to add an amendment to Michigan’s constitution defining marriage as a union solely between a man and a woman. Tom Price, who could become the new health and human services secretary, co-sponsored the First Amendment Defense Act, yet another bill allowing anti-LGBT discrimination in the name of religion.

The latter bill, co-authored by Mike Lee, R-Utah, and Raul Labrador, R-Idaho, was introduced in 2015 and some form of it stands a decent shot at passage under a Congress soon to be controlled by Republicans in both houses. Trump has previously stated his support for the First Amendment Defense Act.

The Russell Amendment may be DOA for now, but the threat of anti-LGBT discrimination under Trump is here to stay.

By Nico Lang