This week, Sen. Ted Cruz (R-TX) 97% and Rep. Sean Duffy (R-WI) 71% will introduce The Protecting Internet Freedom Act. This legislation would prevent the transition of the control of the Internet from U.S. hands to an international body called the “Internet Corporation for Assigned Names and Number (ICANN) unless Congress affirmatively acts to do so. It also ensures that the United States Government would maintain ownership and control of .gov and .mil domains, to protect our national security interests.
Tomorrow the House of Representatives will most likely vote on an amendment that supports President Obama’s executive order elevating sexual orientation and gender identity into a federal protected class.
In July 2014, President Obama issued E.O. 13672, unilaterally elevating sexual orientation and gender identity to special status for purposes of federal contracts. This means that federal bureaucrats could discriminate against, and strip contracts from, contractors that, for example, do not give biological men unfettered access to employee bathrooms designated for women. Congress has repeatedly voted down ENDA — the so-called Employment Non-Discrimination Act — to avoid forcing just such a radical national bathroom policy on American business.
The Maloney Amendment would constitute Congress’s blessing and ratification of the President’s end-run around Congress. It constitutes bad policy that unnecessarily regulates businesses on sensitive matters. Finally it risks undoing the Russell Amendment which was included in the House-passed NDAA, which takes longstanding protections in civil rights law and makes clear that the president’s orders are not exempt from them.
According to Roger Severino, the Director of the DeVos Institute for Religion and Civil Society, the Maloney-style amendments would:
“Ratify and give Congress’s blessing to Obama’s executive overreach, thereby encouraging him to do more of it.Solidify SOGI protection as national policy.
- This would be cited by judges as a reason to uphold Obama’s overreaching and often lawless executive actions imposing SOGI policies (including bathroom access) on schools, private employers, housing providers, medical professionals, and health insurers.
- This would be used by judges as further reason to declare SOGI a protected class under the Constitution.
Affirm the left’s propaganda that SOGI is equivalent to race and that there is massive unjust discrimination against LGBT persons in America today that requires a federal response.
Effectively impose ENDA on federal contractors.
- This would require contractors to grant biologically male employees who identify as women unfettered access to women’s lockers, showers, and bathrooms. It would also require employees address co-workers by the pronouns of their choice regardless of biological sex. It would also require contractors to provide spousal employee benefits to same-sex spouses to the same extent provided to husband-wife couples.
Harm religious liberty.
- Although Maloney contains some protection for employers to hire according to their “particular religion,” it protects only religious non-profits and the Obama administration or courts can interpret the protection narrowly to deny protection of religiously-motivated employee conduct standards. The Obama administration has explicitly refused to say that such conduct standards are protected for religious non-profits. As a result, courts and the administration may (and likely will) say that contractors like Catholic Charities are free to hire only baptized Catholics, but may not deny employees access to the bathroom of their choice or same-sex spousal benefits.
- For-profit contractors that exercise religious beliefs while they earn a living, such as Hobby Lobby, would get no protection whatsoever under Maloney.
May undo the Russell Amendment.
The Russell Amendment protects religious non-profit contractors by applying the ADA’s explicit protection of faith-based employee conduct policies. Depending on the timing of when Russell vs. Maloney become law, Maloney may be interpreted to supersede this vital protection.
Conscience, freedom of speech and association, and religious freedom would suffer as an unavoidable consequence of Maloney (some on the left consider this the goal, not byproduct of Maloney). Although some harms can be mitigated through aggressive subsequent amendments, no amendment will eliminate those harms completely. Some harms, such as ratifying overreach, elevating SOGI to a protected class, and harming the culture cannot be mitigated at all by any amendment short of striking Maloney completely.”
As we saw last week, undermining religious liberty is not a prerequisite to passing appropriations measures in the House. Moving forward, it will be critical that House Republicans defeat any attempt by Democrats to further erode our First Amendment rights by codifying President Obama’s executive order through the appropriations process. House Republicans should expect Democrats to offer similar amendments on every appropriations bill moving forward, and must be prepared to defeat these amendments that threaten the very foundations of our civil society.
This week, the House will vote on and amend S. 2012, the Energy Policy Modernization Act of 2016, to include a number of previously House passed legislation. Separately, the House will also vote to go to conference with the Senate on this same legislation.
Earlier this year, Heritage Action key voted final passage of S. 2012 in the Senate because the bill contained very few meaningful conservative victories and included numerous provisions that expanded the government footprint. Even worse as the bill worked its way through the Senate it was continually made worse by Democrat and Republican amendments.
Background: On Friday May 13, 2016, President Obama’s Department of Justice (DOJ) and Department of Education (ED) issued a letter of joint guidance on transgender bathroom access for America’s school system. Using Title IX of the Education Amendments of 1972, the Obama administration is reinterpreting discrimination against “sex” to include “gender identity.” The new guideline directs any educational institution which receives federal funds to allow transgender students to use bathrooms and locker rooms that correspond to their gender identity, rather than their birth certificate.
Unlawfully Rewriting Law: Biological sex and gender identity mean two very different things. When Congress passed the Education Amendments back in 1972, the purpose was to protect women and girls from discrimination based on sex and ensure equal opportunity in education programs. The Obama administration has no right to unlawfully rewrite federal law in order to advance its own liberal social agenda in the wake of transgender bathroom disputes, must notably in North Carolina.
Violating Federalism: All across the country, state and local governments are working with parents, teachers, and school districts to determine how best to accommodate the privacy and safety of transgender students along with those students who feel uncomfortable going to the bathroom and changing with the opposite sex. For example, many schools have created new single-occupancy bathrooms and changing facilities for transgender students. The Obama administration’s decision to unilaterally impose a one-size-fits all policy for every school in the country undermines the ability of state and local governments to enact and enforce policy that’s best for their communities.
Bad Policy: Sex-specific bathrooms and locker rooms were created for a legitimate reason. Allowing boys who identify as girls to have unfettered access to girls’ bathrooms, locker rooms, shower facilities, and dorm rooms violates the privacy and safety of women. Sex-specific bathrooms serve a valid purpose of protecting the privacy and safety of girls and women, especially those who have been sexually abused.
Frequently Asked Questions:
How will President Obama enforce the guidance?
The joint guidance issued by the DOJ and ED does not have the force of law, though activist courts may interpret it as such, leaving schools under immense pressure to comply. President Obama is attempting to bully state governments into compliance by threatening to strip schools of federal funding. Until the guidelines are upheld by the courts, schools should refuse to comply with President Obama’s overreach.
What schools are affected by the guidance?
If the courts uphold the President’s guidelines, all schools, including colleges, universities, trade schools – public, private, and charter – that receive federal funding will have to comply or lose their federal funds. This could have significant negative repercussions on the school choice movement as well.
How does the federal government define “gender identity?”
According to the Obama administration’s guidelines, “Gender identity refers to an
individual’s internal sense of gender.” Furthermore, a “school may not require transgender students to have a medical diagnosis, undergo any medical treatment, or produce a birth certificate or other identification document before treating them consistent with their gender identity.” Essentially, a student is transgender if and when they say they are.
Can schools provide separate bathrooms and locker rooms for transgender students?
No. The Obama administration explicitly rejects compromises including single-occupancy facilities. According to the guidelines, “A school may not require transgender students to use facilities inconsistent with their gender identity or to use individual-user facilities when other students are not required to do so.”
Do these guidelines apply to housing policy as well?
Yes. Separate accommodations for transgender students are not permitted. This applies to campus housing and hotels for off-campus trips as well, “A school must allow transgender students to access housing consistent with their gender identity and may not require transgender students to stay in single-occupancy accommodations.”
What can be done to reverse the DOJ/ED guidance on transgender bathrooms?
Congress can actively push back against President Obama’s overreach by passing legislation clarifying that for the purpose of all federal law, “sex” does not mean “gender identity” or passing legislation that “sex” does not mean “gender identity” for the purpose of Title IX of the Education Amendments of 1972 and Title VII of the Civil Rights Act of 1968. Congress can also defund the guidance by attaching a defund rider to an appropriations bill(s) that stops the DOJ/ED from using federal funds to enforce the guidance.
Last Thursday, Republicans in the House of Representatives defeated an anti-religious liberty amendment offered by Rep. Sean Maloney (D-NY) 16% to the 2017 Military Construction and Veterans Affairs (MilCon/VA) appropriations bill (H.R. 4974). Though not immediately clear at first glance of the actual amendment text, the Maloney amendment would have further ratified an overreaching executive order issued by President Obama in 2014, which threatens religious liberty for private institutions who may contract with the federal government. As The Heritage Foundation’s expert on religious liberty Ryan Anderson wrote in 2014,
“[President Obama’s executive] order disregards the consciences and liberties of people of goodwill who happen not to share the government’s opinions about issues of sexuality. All Americans should be free to contract with the government without penalty because of their reasonable beliefs about morally contentious issues.”
How does the EO disregard conscious and liberty, infringe upon the First Amendment, and the free exercise of religion? There are at least 4 main policy problems, which Ryan Anderson also detailed last week after the Maloney amendment failed: