LGBT Bias Ban Exemption Dropped From Defense Bill

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By Chris Opfer

Nov. 30 — The Republican lawmaker behind a controversial measure to shield religiously affiliated contractors from a ban on sexual orientation discrimination dropped the provision after being assured by the Trump transition team that the president-elect will address his concerns via executive order, an aide told Bloomberg BNA.

“Our office received assurances from senior Trump officials that this will be addressed by the new administration,” Daniel Susskind, a spokesman for Rep. Steve Russell (R-Okla.), said Nov. 30. “Since this ambiguity was created with an executive order, it can be remedied in that fashion as well.”

Russell sponsored the amendment, which sparked controversy when it was added to the National Defense Authorization Act ( H.R. 4909) that passed in the House in May. The provision would have exempted religious corporations, associations, educational institutions and societies from an executive order (E.O. 13,672) barring discrimination by federal contractors against their workers based on sexual orientation and gender identity.

The language was pulled from the legislation during conference committee negotiations to iron out differences between the bill and a separate version passed in the Senate. Russell is not a member of the conference committee and it’s not clear whether he would have been able to successfully lobby to keep the provision in the measure during the negotiations.

Religious Freedom or Discrimination?

The amendment drew sharp criticism from Democrats and civil rights groups, who called it a thinly veiled attempt to allow some contractors to use religion to discriminate against workers based on their sexual orientation and gender identity. Russell maintained that the provision would simply reinforce exemptions already included in laws banning workplace discrimination.

President Barack Obama issued the executive order banning sexual orientation and gender identity discrimination by federal contractors in 2014. It updated a previous order from President George W. Bush to expand bias protections and kept in place an existing provision exempting religious groups.

Russell’s amendment would require government agencies to apply the executive order in a way that’s “consistent” with Title VII and the Americans with Disabilities Act. Those laws allow religiously affiliated employers to take a worker’s religion into account in making hiring decisions.

Title VII doesn’t expressly ban sex orientation and gender identity discrimination. The Equal Employment Opportunity Commission and others argue that those forms of bias are covered by the law’s ban on sex discrimination.

The White House Office of Management and Budget said earlier this year that the Obama administration “strongly objects” to the Russell amendment. The NDAA has been signed into law in each of the past 54 years.

The Trump transition team didn’t immediately respond to Bloomberg BNA’s request for comment.

To contact the reporter on this story: Chris Opfer in Washington at copfer@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com

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