Media Advisory: US Department of Justice Guidance Could Allow Discrimination Against LGBT People

Media Advisory
October 6, 2017

Media Contact:
Rachel Dowd, dowd@law.ucla.edu
(310) 206-8982

US Department of Justice Guidance Could Allow Discrimination Against LGBT People

Order could impact hundreds of thousands of LGBT people, including tens of thousands of LGBT youth in foster care and same-sex couples seeking to foster or adopt

Los Angeles—U.S. Attorney General Jeff Sessions issued a memorandum today instructing that “to the greatest extent practicable and permitted by law, religious observance and practice should be reasonably accommodated in all government activity, including employment, contracting, and programming.”

The Williams Institute, an academic research center that studies sexual orientation and gender identity law and policy, is providing this media advisory to assist in reporting on this story as it relates to LGBT people.

Based on a preliminary analysis, the Sessions Memorandum indicates that religious organizations (which could include for-profit businesses and service providers) and religious adherents may be entitled to exemptions to anti-discrimination laws. The Sessions Memorandum appears to instruct that the federal government generally may not withhold contracts or grants from businesses and service providers that discriminate against LGBT employees, job applicants, or beneficiaries based on a religious objection.

LGBT Employees of Federal Contractors

Over 20 percent of the U.S. workforce—28 million people—are employed by federal contractors. Under an executive order issued by former President Obama in 2014, federal contractors are prohibited from discriminating against their employees based on sexual orientation or gender identity.

The Williams Institute estimated that as a result of the 2014 executive order, 11 million workers, including 400,000 LGBT employees, gained protections from discrimination based on their sexual orientation and gender identity. These 11 million employees did not have protections from sexual orientation and gender identity discrimination under a corporate policy or state law before the order was issued.

The Sessions Memorandum may limit the scope of the 2014 order, generally allowing contractors to discriminate against LGBT employees and job applicants based on their religious beliefs without losing their contracts.

Same-Sex Couples Seeking to Adopt or Foster Children

The Sessions Memorandum may allow federally-funded religious organizations providing child welfare services to decline adoption and foster services to same-sex couples. Williams Institute research shows that many same-sex couples adopt and foster children, and are more likely to do so than different-sex couples:

  • Nearly 27,000 same-sex couples are raising an estimated 58,000 adopted and foster children in the United States.
  • Same-sex couples are three times more likely than different-sex couples to be raising an adopted or foster child.

The Sessions Memorandum could limit opportunities for family formation among same-sex couples, and leave many children without a foster placement or permanent home.

LGBT Youth in Foster Care

The Sessions Memorandum may also allow religious organizations providing child welfare services to decline to serve LGBT youth. Williams Institute research finds that LGBT youth are greatly overrepresented in the foster system; for example, in Los Angeles, LGBT youth make up 20 percent of the youth population in care, compared to only 8 percent of the general youth population. Of the 400,000 children currently in foster care, an estimated 80,000 are LGBT.

LGBT Federal Employees

The Sessions Memorandum could open the door for harassment and discrimination against LGBT people who work for the executive branch. An estimated 64,000 LGBT people are federal civil service employees.

Services Provided to Same-Sex Couples

The Sessions Memorandum could open the door for denial of services and discrimination against same-sex married couples. There are nearly 550,000 married same-sex couples in the United States.

Access to Health Care

The Sessions Memorandum could limit federal regulations that protect LGBT people from discrimination in health care, including by hospitals, insurers, and other providers. There are nearly 11 million LGBT adults in the United States, including over 1.5 million transgender adults and youth.

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The Williams Institute, a think tank on sexual orientation and gender identity law and public policy, is dedicated to conducting rigorous, independent research with real-world relevance.

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