As progressives process a number of disappointing losses from the Nov. 2 election results, it’s important we don’t glaze over a concerning ruling that came from a federal judge in Texas on Sunday. U.S. District Judge Reed O’Connor—the guy who Trump once praised at length for striking down the Affordable Care Act and who overturned protections for trans patients in health care settings—ruled that for-profit businesses do not have to abide by LGBTQ+ discrimination claims if it clashes with their religious beliefs, as reported by the Dallas Morning News. This ruling is in opposition to a ruling from the Supreme Court that protected people based on sexual orientation and gender identity.
O’Connor’s ruling also permits certain other religious groups, like churches and nonprofits associated with a religion, to discriminate against LGBTQ+ people. How so? By refusing to hire them because of their identities, and by allowing them to be fired once employed because of their identities.
O’Connor, nominated to the bench by George W. Bush back in 2007, issued this opinion in response to gray areas in the Supreme Court’s decision in Bostock v Clayton County, Ga., the historic 2020 case that finally granted Title VII protections for LGBTQ+ people. O’Connor’s opinion suggests that Christian-run health care businesses can, in fact, use freedom of religion and the First Amendment to protect themselves from anti-LGBTQ+ discrimination claims. In his 70-page ruling, he applied this same logic to the aforementioned nonprofits and church organizations.
As some background, Stephen Hotze—infamous as an anti-LGBTQ activist and long-standing conservative—brought the case involving his Christian management firm, Briadwood Management Inc., in which he sued the Equal Employment Opportunities Commission (EEOC) for its enforcement of Bostock. Hotze does not permit his firm to “hire or employ individuals who are known to engage in sexually immoral behavior or gender non-conforming conduct of any sort, including homosexuality, cross-dressing, and transgenderism,” according to his lawsuit. Hotze argued this violates the firm’s “deeply held religious beliefs.” Hotze’s church, the Bear Creek Bible Church, was also named as a plaintiff in the suit.
O’Connor also ruled that employers can mandate that workers use the bathroom that correlates with their sex assigned at birth, not their gender identity, which is obviously transphobic and potentially dangerous for trans workers. He also ruled that employers can set dress codes. Over the summer, my colleague Joan McCarter described O’Connor as a “whack job,” and that assessment still rings quite true today. If anything, given the potential harm caused, it’s generous.
If you’re wondering how O’Connor thinks one should decide if a business qualifies for a religious exemption, he sets the bar pretty low. What is it? Just if their religious belief appears to be an “honest conviction.”
Thankfully, O’Connor’s ruling is unlikely to go without appeals. It would first go to the U.S. Court of Appeals for the Fifth Circuit, and potentially could go to the Supreme Court, but it’s up in the air on whether the justices would agree to take the case or not. As we’ve covered here at Daily Kos, the court has heard some cases involving LGBTQ+ discrimination and businesses, and that’s (unfortunately) gone in both directions. But there’s no guarantee they would make a bid on this one.
Gregory Nevins, who serves as senior counsel for LGBTQ+ advocacy group Lambda Legal, told Reuters he “firmly” believes the decision is “so bad and contains so many errors” that the Fifth Circuit will reverse at least part of it. But Nevins stressed that exactly what they will reverse, and what will happen after, is unknown at this point.