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By Chris Marr
The Louisiana governor can’t extend bias protections to gay and transgender workers through an executive order because those protections don’t exist in state or federal law, a state appeals court decided.
Gov. John Bel Edwards (D) lost the latest round of a legal battle over his order barring discrimination by state agencies and requiring that an anti-discrimination clause be included in contracts with service providers to the state. Louisiana’s First Circuit Court of Appeal found Edwards overstepped his authority by including sexual orientation and gender identity among the list of protected classes ( La. Dep’t of Justice v. Edwards , La. Ct. App., 1st Cir., No. 2017 CA-173, 11/1/17 ).
“The current laws simply prohibit discrimination based on a person’s biological sex,” Judge Toni M. Higginbotham wrote in the Nov. 1 decision for the three-judge appeals court panel. The governor’s order sought to expand on state law, rather than “directing the faithful execution of the existing anti-discrimination laws of this state,” the judge wrote.
The debate over LGBT bias protections is ripe for a possible hearing before the U.S. Supreme Court next year, as a case challenging a Georgia hospital security guard’s firing awaits the court’s review. Even federal agencies are divided over how to apply federal law barring sex discrimination. The Equal Employment Opportunity Commission says it views sex bias protections as covering sexual orientation and gender identity, whereas Justice Department attorneys argued earlier this year the protections apply only to biological sex.
The governor is reviewing the court’s decision to determine whether to appeal, he said in a written statement released Nov. 1. His office didn’t immediately respond to Bloomberg Law’s follow-up questions on Nov. 2.
“Discrimination in state government and by state contractors is wrong, makes us weaker, and is bad for business and economic development,” Edwards said. “Even President Trump agrees, as he has kept in place a federal executive order which is virtually identical to the order I put in place. I went a step further and provided an exemption for certain religious organizations.”
Edwards issued the executive order (No. JBE 2016-11) in April 2016, a few months after taking office as governor, and faced resistance from the state’s attorney general and members of the Legislature. The Legislature had considered and rejected attempts to add gender identity to the list of protected classes in Louisiana for several years, according to the appeals court opinion.
The governor’s lawyers had argued nothing prevents the governor from establishing policy via executive order as long as it doesn’t conflict with existing law.
The attorney general’s office said the court made the right decision in the case, upholding the proper separation of powers between Louisiana’s legislative and executive branches.
“This ruling affirms a notion of basic civics that the Legislature makes the law, not the Governor,” Attorney General Jeff Landry (R) said in a written statement.
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