Transgender Discrimination and Churches in Iowa and Massachusetts
In a recent submission to the “All Around Us” rubric (vol. 92, No. 18 [ July 2016]) I reported that across the Western world anti-discrimination laws are being amended to include protection for “transgendered” individuals, that is, for persons who “identify as” a gender different from the biological gender “assigned to them” at birth. Two U.S. states, Iowa and Massachusetts, have made the headlines recently because of a perceived threat to the religious liberty of churches.
The Iowa Civil Rights Commission (ICRC) recently revised its guidelines because they appeared to lack exemptions for churches. This revision was made in response to a lawsuit filed by the Alliance Defending Freedom on behalf of Cornerstone World Outreach Church in Sioux City, Iowa. The offending, some say, confusing, section of ICRC’s brochure entitled, “Does the law apply to churches?” formerly read as follows, “Where qualifications are not related to a bona fide religious purpose, churches are still subject to the law’s provision. (e.g., a child care facility operated at a church or a church service open to the public).”1
The astute reader can see the problem—shall the secular state determine what is and what is not a church’s “bona fide religious purpose,” and are not all church services, by definition, “open to the public”? What else do our signs, “Everyone welcome,” mean?
Kristin H. Johnson, director of ICRC, issued this clarifying statement on the Iowa state government’s website:
“The Iowa Civil Rights Commission has never considered a complaint against a church or other place of worship on this issue,” said director Kristin H. Johnson. “This statute was amended to add these protected classes (sexual orientation and gender identity) in 2007 and has been in effect since then. The Iowa Civil Rights Commission has not done anything to suggest it would be enforcing these laws against ministers in the pulpit, and there has been no new publication or statement from the ICRC raising the issue. The Commission regrets the confusion caused by the previous publication.”2
The ICRC’s brochure has been changed to read as follows:
Places of worship (e.g. churches, synagogues, mosques, etc.) are generally exempt from the Iowa law’s prohibition of discrimination, unless the place of worship engages in non-religious activities which are open to the public. For example, the law may apply to an independent day care or polling place located on the premises of the place of worship.3
In the same brochure, the ICRC gives an example of illegal discrimination: “Refusal to allow an individual to use all the facilities or services of the public accommodation.” “Facilities” include restrooms, which means that a “transgendered” person may be legally entitled to use the restroom of his/her choice “if the place of worship is engaging in non-religious activities which are open to the public.”4
The Massachusetts Commission Against Discrimination (MCAD) has also published “Gender Identity Guidance” in which it states the following:
Even a church could be seen as a place of public accommodation if it holds a secular event, such as a spaghetti supper, that is open to the general public. All persons, regardless of gender identity, shall have the right to full and equal accommodations, advantages, facilities and privileges of any place of public accommodation.5
In case the reader is wondering what is meant by “facilities,” the brochure adds, “Any place of public accommodation that lawfully separates access to a place or portion thereof based on a person’s sex, shall grant admission to that place, and the full enjoyment of that place or portion thereof, consistent with the person’s gender identity.”6 Moreover, “the law provides that a place of public accommodation may not distribute, publish or display an advertisement, notice or sign intended to discriminate or actually discriminating against persons of any gender identity.”7
If anything, the MCAD’s provisions are more troubling than the ICRC’s. The young people of our churches often use church premises for fundraisers, which are generally open to the public—pancake breakfasts, burger fries, car washes, soup suppers, ice cream socials, and the like. Could a “transgendered” individual enter one of our churches on such an occasion (a “secular event”), and request the use of the restroom of his/her choice, so that a biological man identifying as a “transgendered woman” could demand access to the women’s restroom, for example? And would such an individual be offended if he/ she saw a book, pamphlet, poster or other printed notice or sign displayed in the narthex, which he/she perceived to be discriminatory? Imagine if a church displayed the words of, “And he answered and said unto them, Have ye not read, that he which made them at the beginning made them male and female?” inside the building. Would such a display fall foul of the MCAD’s guidelines?
ICRC and MCAD may have no immediate plans to target churches, but all it takes are a couple of test cases and a liberal judiciary to push the LGBT agenda one step further. And if the U.S. Supreme Court, which with the death of Justice Antonin Scalia in February 2016 is now evenly split, even deadlocked, between Liberals and Conservatives, moves further to the left, might we see “transgender rights” legislation enforced in all U.S. states?
Non-discrimination Law and Religious Exemptions
The chair of the U.S. Commission on Civil Rights (USCCR), Martin R. Castro, appointed in 2011 by President Obama, raised eyebrows with his introductory remarks in the Commission’s recent (September 2016) Briefing Report, “Peaceful Coexistence: Reconciling Nondiscrimination Principles With Civil Liberties”:
The phrases “religious liberty” and “religious freedom” will stand for nothing except hypocrisy so long as they remain code words for discrimination, intolerance, racism, sexism, homophobia, Islamophobia, Christian supremacy, or any form of intolerance.8
One of the issues swirling around the First Amendment in the U.S. is the “balance” between “civil rights” (for protected classes in society) and “religious freedom,” the right to live, work, and behave according to one’s religious beliefs and convictions. The issue has really come to a head because of the addition of “sexual orientation” and “gender identity” to the list of protected classes. The question has arisen: does the government have the right, because of its perceived obligation to prevent “discrimination,” to compel religious individuals and corporations (that is, businesses owned and run by religious individuals) to act against their religious beliefs and practices? Can the government compel a Christian adoption agency to arrange adoptions for “same-sex couples”? Can the government compel a Christian business to service a “same-sex wedding,” or provide health insurance that includes abortion or abortifacient drugs for its employees?
Castro’s opening salvo makes his position clear, as do the following remarks:
Religious exemptions to the protections of civil rights based upon classifications such as race, color, national origin, sex, disability status, sexual orientation, and gender identity, when they are permissible, significantly infringe upon these civil rights.9 Regardless of the pace at which American religious institutions do or do not embrace the reality of civil rights and liberties of LGBT families and of women, religious exemptions to them are, and must remain, few and narrow. 10
Do not miss the import of Castro’s words—religious exemptions to non-discrimination law should be “few and narrow” because they “significantly infringe upon” the civil rights of protected minorities. Also, do not miss Castro’s presupposition—sexual orientation and gender identity are equivalent to race and color, and, therefore, to defend the Bible’s teaching on sexual behavior, marriage, and gender against so-called LGBT ideology is equivalent to racism. When the courts are in the hands of left-wing ideologues, expect the exemptions for churches, Christian schools and universities, and businesses owned by Christians to become fewer and narrower.
Conservative Christians Have “Lost” the Culture Wars: Now It’s Payback!
Another left-wing ideologue, Mark Tushnet, Professor of Law at Harvard Law School, in a blog post entitled, “Abandoning Defensive Crouch Liberal Constitutionalism,” reveals his animosity against conservative values. Some newspapers hysterically reported that Tushnet was calling for harsh treatment of Christians. “Harvard professor: Start Treating Christian Conservatives Like Nazis” proclaimed the Washington Times.11 To be fair to Tushnet, whose words we must not falsify (Heidelberg Catechism, Q&A 112), he did not write that. Instead, he urges his fellow liberals aggressively to take advantage of the death of Justice Antonin Scalia to petition the Supreme Court to overrule a host of cases: “Liberals should be compiling lists of cases to be overruled at the first opportunity on the ground that they were wrong the day they were decided.”12 The controversial part of Tushnet’s blog post is how to deal with the “losers” (whom he views as those who hold to conservative moral and social values):
For liberals, the question now is how to deal with the losers in the culture wars. That’s mostly a question of tactics. My own judgment is that taking a hard line (“You lost, live with it”) is better than trying to accommodate the losers, who—remember—defended, and are defending, positions that liberals regard as having no normative pull at all. Trying to be nice to the losers didn’t work well after the Civil War, nor after Brown. (And taking a hard line seemed to work reasonably well in Germany and Japan after 1945.) I should note that LGBT activists in particular seem to have settled on the hardline approach, while some liberal academics defend more accommodating approaches. When specific battles in the culture wars were being fought, it might have made sense to try to be accommodating after a local victory, because other related fights were going on, and a hard line might have stiffened the opposition in those fights. But the war’s over, and we won.13
“The war’s over, and we won!” If by “won,” Tushnet means a liberal judiciary, the redefinition of marriage at state and federal level, the legal right to murder one’s unborn children for any reason, and a host of other liberal “victories,” I suppose he has won. Will the cultural tide change again in Christians’ favor? Who can say? Christians put no trust in princes or judges. We do not panic, and neither do we stick our heads in the sand. We recognize that Christians have suffered injustice throughout history for Christ’s sake, and we prepare to suffer, if God wills.
Nevertheless, the victory of the wicked is temporary. The Egyptians thought that they had won when they passed the “Cast All Jewish Baby Boys into the River Nile Act” in . The Persian princes thought that they had won when they passed the “No Prayer to Any God But Darius Act” in . Haman thought he had won when he passed the “Exterminate All the Jews in Persia Act” in . Even our children know the outcome of those cases.
Our society is becoming increasingly and openly hostile to Christianity, and the much-vaunted “common grace,” with which the Western world is supposedly awash, is doing nothing to stem the tide. The words of our God remain, and we must cling to them by faith: “No weapon that is formed against thee shall prosper; and every tongue that shall rise against thee in judgment thou shalt condemn. This is the heritage of the servants of the Lord, and their righteousness is of me, saith the Lord” ().
1 The Des Moines Register, July 8, 2016, “Civil Rights Commission Revises Church Exemption Language,” http://www.desmoinesregister.com/story/news/2016/07/08/civil-rights-commission-revises-church-exemption-language/86879100/ (emphasis added).
2 Iowa Civil Rights Commission Releases Revised Sexual Orientation & Gender Identity Public Accommodations Brochure, https://icrc.iowa.gov/pressrelease/iowa-civil-rights-commissionreleases-revised-sexual-orientation-gender-identity-public.
3 Iowa Civil Rights Commission, Sexual Orientation And Gender Identity: A Public Accommodations Provider’s Guide to Iowa Law, https://icrc.iowa.gov/sites/default/files/publications/2016/2016.sogi_.pa1_.pdf.
4 ICRC, Provider’s Guide.
5 Gender Identity Guidance, Massachusetts Commission Against Discrimination, September 1, 2016, http://www.mass.gov/mcad/docs/gender-identity-guidance.pdf.
6 MCAD, Gender.
7 MCAD, Gender.
8 U.S. Commission on Civil Rights (USCCR), “Peaceful Coexistence: Reconciling Nondiscrimation Principles With Civil Liberties” (Briefing Report, September 2016), http://media.washtimes.com.s3.amazonaws.com/media/misc/2016/09/09/Peaceful-Coexistence-09-07-16-6.pdf.
9 USCCR, “Peaceful Coexistence.”
10 USCCR, “Peaceful Coexistence.”
12 “Abandoning Defensive Crouch Liberal Constitutionalism,” https://balkin.blogspot.ie/2016/05/abandoning-defensive-crouchliberal.html.
13 Tushnet, “Abandoning…Constitutionalism.”