Trans Rights *is* Religious Freedom
Two Bills in Congress Can Knock Down the Fundamentalist Privilege Still Too Often on Blatant Display
Try as I might, I simply cannot wrap my mind around the stunning hypocrisy of those who would fly literal flags exhorting “Liberty!” and “Freedom!” yet who feel entitled to tell others how to express their sexuality or gender identity and seek to punish those who enact their own freedom differently.
It’s obvious at this point in America’s divided society that anyone waving those flags is only concerned about the liberty and freedom of their own tribe, the tribe of religious fundamentalists. It’s the polar opposite of freedom for all.
On sexual and gender issues, the right side of history has rarely been so obvious. In our lifetimes, we’ve witnessed sweeping societal enlightenment on human sexuality—away from false binaries based on religious theology and toward a more humanistic understanding of nature’s spectrum and variety.
The politicization of LGBTQ+ rights by fundamentalists is fueling an exodus from religious affiliation, perhaps more than any other issue—though likely also driven by opposition to women’s equality and reproductive rights.
But this is not just religion versus secularity. Today, a majority of Americans support gay marriage, including many in liberal religious denominations. In the Jewish community, while the percentage of secular Jews is large (at least 42%), the overwhelming Jewish support for LGBTQ+ rights at 83% or higher demonstrates the ability for religious and not just secular folks to evolve on issues that were formerly considered immutable commandment.
Nevertheless, Christian supremacy will not cede power quietly despite their decreasing minority-opinion status. We recently saw ugly anti-trans displays from some members of Congress, the supposed leaders of our nation.
It is clear to us at Jews for a Secular Democracy that LGBTQ+ equality is a church-state separation issue. It is only a religious fundamentalist theology that objects to equality. By imposing that theology on the rest of us, governmental policies discriminating against LGBTQ+ people are a breach of the First Amendment of the U.S. Constitution, which prohibits the establishment of one religion over others or none.
This is one of the many reasons it is so important to support the Do No Harm Act currently under consideration in Congress. The Do No Harm Act will restore the original intent of the 1993 Religious Freedom Restoration Act (RFRA), which over the years has been transformed from a shield protecting religious expression into a sword allowing for religious discrimination. Americans United for the Separation of Church and State provides a good, brief explainer here. The law would address a wide range of issues including reproductive rights and employment and educational practices.
Unfortunately, it has been a rightward-moving Supreme Court stewarding the shift of RFRA interpretation away from protecting religious minorities and toward empowering religious persecution, with decisions like Burwell v. Hobby Lobby Stores. It is possible that despite their other surprisingly inclusive decisions like Obergefell v. Hodges, the judiciary will continue to stymie LGBTQ+ equality.
And that is why supporting a second piece of legislation is essential: the Equality Act will amend the Civil Rights Act in order to end discrimination against LGBTQ+ Americans. In essence, this bill adds LGBTQ folks to a protected class of citizens, naming specifically what types of discrimination currently permitted federally would no longer be allowed, including housing, credit, education, jury service, and other public programs. While it does not address the church-state separation aspect head on, this may be the more direct and viable approach to achieve the same outcome that all church-state separation advocates want anyway: fair and equal treatment under the law.