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March 28, 2016

Lawsuit to Be Filed Challenging Broadest Anti-LGBT Law in the Nation

By David Barkey, Religious Freedom Counsel


Under the false and offensive pretext of safety in bathrooms, North Carolina last week enacted the broadest anti-LGBT law in the nation.  Adopted in a reckless and inequitable manner, the new law not only sanctions discrimination against LGBT people, but undermines the rights of virtually all North Carolinians.  Yesterday, ACLU, Lamda Legal and Equality North Carolina announced that they will be filing a federal lawsuit challenging the statute.

In February 2016, the City of Charlotte, NC added protections for the categories of gender identity and sexual orientation to its Non-Discrimination Ordinance.  In response, the State Legislature called a special session, customarily reserved for budget, natural disaster or redistricting emergencies, to overturn the amended Ordinance.

Flag_of_North_Carolina.svgWithin twenty-four hours, the legislature – without public hearings or input – hastily enacted sweeping legislation (House Bill 2) and the Governor signed it into law.  It prohibits transgender people from using restrooms or changing facilities in accordance with their gender identity, which ironically will require transgender men to use women’s facilities. But the law did not stop there.

It prohibits local government from adopting any anti-discrimination protections for LGBT people.  Furthermore, the law prohibits any North Carolinian from filing an anti-discrimination lawsuit in state court, including a religious discrimination claim.  It also bars local governments from raising the minimum wage or requiring contractors to pay a prevailing wage or to provide benefits such as sick leave.

House Bill 2, and the process by which it was adopted, are disgraceful.  The law conveys the clear message that the majority of North Carolina’s state government sanctions discrimination against LGBT people.  Undoubtedly it will damage the State’s economy, result in costly litigation, and jeopardize federal funding for North Carolina.  We are confident that the court hearing the lawsuit challenging House Bill 2 will strike down this appalling and unconstitutional law if the legislature does not reconsider and repeal it first.

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April 3, 2015

Arkansas’ and Indiana’s Fixes to “Religious Freedom” Laws are Illusory

Arkansas’ and Indiana’s passage of discriminatory “religious freedom” laws was met with national backlash from civil rights groups, the business community, and others.  Under intense public pressure, both state legislatures made “fixes” to these laws, which their respective Governors promptly signed.   But these revisions are illusory and do little to mitigate the harms of these laws.

Neither of the original Arkansas or Indiana measures mentioned sexual orientation or discrimination. Under the guise of religious freedom, however, both allowed businesses and employers to discriminate against the LGBT community, as well as against religious and ethnic minorities, by providing them with a virtually insurmountable religious-based legal defense.Arkansas-StateSeal.svg

Proponents of these laws erroneously claimed that they were modeled on the 1993 federal Religious Freedom Restoration (“RFRA”).  That RFRA, which the Anti-Defamation League supported, was much narrower and explicitly designed to protect individuals and faith-based institutions’ religious exercise from government infringement.   It was never meant to apply to for-profit entities or private disputes, or to enable entities to discriminate against individuals in the name of “religious freedom.”

Indiana’s fix to its law prohibits businesses from denying services to customers based on sexual orientation or gender identity.  And Arkansas’ revision now tracks the language of RFRA and states that it should be interpreted consistent with the federal law.  While these fixes may make good media sound bites, they are misleading.

The revised Indiana law does not provide statewide civil rights protections for the LGBT community or prevent its use to harm others.  Because the state does not have an inclusive anti-discrimination statute, and because the vast majority of Indiana cities and towns lack local civil rights protections for the LGBT community, businesses and employers remain free to discriminate on the basis of sexual orientation or gender identity.   Even with this fix, the Indiana law still provides a powerful religious-based defense to individuals and businesses in civil and criminal actions, and infringes on the rights of others.  For example, a police officer could refuse to protect a casino, liquor store, pharmacy, butcher shop, lending institution, or women’s health clinic.


The amended Arkansas law is perhaps more disingenuous.  Although it is now consistent with RFRA, the U.S. Supreme Court’s deeply disturbing Hobby Lobby decision expands RFRA’s protections to for-profit, closely held corporations (ranging from small businesses to nationwide companies like Hobby Lobby).  And a 1999 federal U.S. Court of Appeals decision applicable to Arkansas ruled that RFRA applies to private disputes.

So a family owned business, large or small, can invoke the new law’s powerful defense in virtually any civil action, including claims of discrimination or wrongful denial of service, employment or housing.  Keep in mind, 96.6% of Arkansas’ employers are small businesses.  Translation: the vast majority of Arkansas’ businesses can use the law to deny services, employment, and housing to the LGBT community and other minorities.  Making matters worse, Arkansas has no state-wide civil rights protections for the LGBT community, and it recently enacted another law barring local governments from providing such protections for their residents.

To truly remedy the harmful effects of their so-called “religious freedom” laws, Arkansas and Indiana must enact statewide anti-discrimination protections for the LGBT community, insert additional safeguards against use of the laws to harm others, and limit their application to individuals, religious institutions, and religiously-affiliated non-profits against government action that substantially burdens religion.

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August 20, 2013

ADL Coordinates Coalition Letter On Department Of Education Bullying Data Collection Proposal

On June 21, the Department of Education (DoE) announced a number of revisions to its Civil Rights Data Collection (CRDC) school survey.  The CRDC is the largest, most important, and most comprehensive data collection instrument of its kind.  It requires schools and school districts to provide data on a wide range of relevant education issues.  The DoE proposed that CRDC add sexual orientation and religion to their existing effort to collect data on bullying and harassment on the basis of race, sex, and disability. civil-rights-data-collection-bullying

Accompanying resources for the DoE announcement stated: 

Safe environments are critical to learning. Since the 2009, the CRDC has provided a lens on school climate and the bullying and harassment that students too often endure on the basis of race, sex, and disability….

ADL coordinated a letter from 49 national organizations providing comments relating to these proposed CRDC revisions.  In our comments, ADL and its coalition of education, religious, civil rights and professional organizations supported DoE’s decision to expand the CRDC to include reports of bullying and harassment based on sexual orientation and religion, and encouraged the collection of data on incidents based on gender identity. We argued that though the impact of bullying has been well documented, there is insufficient data on the nature and magnitude of bullying directed at individuals on the basis of their sexual orientation – and even less on religion-based and gender identity-based bullying.  

ADL and its allies also urged the Department to reconsider their proposal to eliminate questions relating to whether a school has adopted written bullying prevention policies.  An essential starting point for effective response to bullying and harassment in schools is the adoption of a comprehensive, inclusive bullying and harassment prevention policy.  The inclusion of questions relating to whether an education unit has such a policy, the coalition argued, elevates awareness of the value of these policies and demonstrates that having such policies is important and significant enough to highlight in the CRDC.  The coalition letter also urged the Department of Education to ask the education units that have adopted a bullying and harassment prevention policy to provide a link to their policy as part of their CRDC response.

A top priority for the Anti-Defamation League is working to create safe, inclusive schools and communities and ensuring that all students have access to equal educational opportunities.  Over the past decade, the League has emerged as a principal national resource developing education and advocacy tools to prevent prejudice and bigotry. ADL has built on award-winning anti-bias education and training initiatives, including the A WORLD OF DIFFERENCE® Institute, to craft innovative programming and advocacy to address bullying and its pernicious electronic form known as cyberbullying.  ADL takes a holistic approach to addressing bullying and cyberbullying, tracking the nature and magnitude of the problem, developing education and training programs, and advocating – at the state and federal level – for policies and programs that can make a difference.

It will be incumbent on ADL and our allies to work with schools and school districts to make sure schools and school districts are reporting this data accurately – and using the data to improve the climate for learning for all students.

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