The leak of a proposed executive order from President Donald Trump giving legal protections to individuals, businesses and organizations—including federal employees—accused of anti-LGBT discrimination sparked outrage among advocates the week of Jan. 30.
Advocates have not yet been able to discern the context from the Trump Administration for the order, which would be a federal version of so-called religious freedom legislation proposed in numerous states, most notably in Indiana, where then-Governor Mike Pence helped shepherd the Religious Freedom Restoration Act to fruition in 2015, with disastrous results.
"The dangerous and overly broad language of the draft executive order leaked to the public would leave basic rights at the personal discretion of others, and undermine the crucial safeguards against discrimination that have created opportunities for at-risk youth," said Eliza Byard, executive director of GLSEN, who added that the order would "allow health and counseling professionals to deny LGBTQ youth life-saving services, and it would allow school leaders to force some students to use separate and unequal facilities and deny them equal educational opportunities. LGBTQ educators could lose their jobs because of who they are, who they love or who they married."
Many organizations were preparing for Trump to present the order at the National Prayer Breakfast Feb. 2 but his comments there were largely limited to foreign policy issues, though he made vague references to religious freedom.
Earlier rumors had suggested Trump would be undoing former President Barack Obama's 2014 order protecting LGBT employees of federal contractors. The administration denied that they would be releasing such an order and further reiterated its support for LGBT rights. Later in the week, administration officials said the leaked executive order was one of "hundreds" of proposed orders circulating amongst White House staff and that there were no plans to put it forward.
On Feb. 2, White House spokesman Sean Spicer said, "There are a lot of ideas that are being floated out … [The President] asks for input, he asks for ideas, and on a variety of subjects there are staffing procedures that go on, where people have a thought or an idea and it goes through the process. But until the President makes up his mind and gives feedback and decides that that's final, there's nothing to announce."
During his campaign, Trump said that he would appoint a Supreme Court justice who would help overturn marriage-equality; his proposed nominee, Neil Gorsuch, has a limited record on LGBT issues, but has voiced his admiration for the work and views of the late Justice Antonin Scalia, whom he'd be replacing and who was virulently opposed to LGBT-rights. Trump has also said that he would sign the First Amendment Defense Act, a national religious-freedom bill proposed in 2015 that failed to get any traction.
Chicago activist Andy Thayer of Gay Liberation Network (GLN) said the LGBT community should get used to what he called "head-fakes"—leaks of proposed legislation or orders—from the White House, and noted that they are a staple of any presidential administration, Republican or Democratic. But he added that they are a signal for the community to stay prepared to mobilize.
"The administration's language was, 'We're not implementing it at this time,'" Thayer said. "That's a very important distinction. The game ain't over yet."
The draft order would have grave implications for the LGBT community, women seeking birth control and family planning services, unmarried couples and numerous others were it to be implemented. Not only does the order offer federal employees and others legal cover behind religious convictions, it also also directs the U.S. Attorney General to set up a Department of Justice division or task force to investigate violations of religious liberties.
Ed Yohnka, director of communications and public policy at ACLU Illinois said that area residents would nevertheless still be protected by Chicago, Cook County and Illinois human-rights ordinances should the order come to fruition.
"Those rights were legislated and fought for," Yohnka said. "Those can't be wiped out with the stroke of a pen."
But Yohnka emphasized that more persons and businesses would feel emboldened by the order. "Our concern is that we would have to fight, over and over again," he said.
Christopher Clark, midwest regional director for Lambda Legal, added that the order was "a statement with the full force of the federal government behind it, telling people that it's practically an invitation for people to discriminate against members of our community."
He further emphasized that, even with Chicago and Illinois laws being what they are, numerous complex questions would open up about where discrimination laws intersect at local and federal levels. While local employment issues would be covered, Illinois laws would not cover interactions with federal employees, for example, and issues of Title IX-related school funding would be at stake as well, among myriad issues.
"Fortunately, an executive order does not erase the Constitution," Clark said. "The U.S. Constitution remains in place and we believe there are many parts of this order that would violate it. That means litigation and people stepping up to file lawsuits and fight this in court. We're prepared to do that, but at this point we shouldn't have to."
GLN and other advocacy groups have put into place a contingency protest-plan for when and if the order is issued, and will have a march that evening. For information, visit bit.ly/2kmvtMN .
