The Labor Department proposal follows a string of Supreme Court decisions that protected business owners’ rights to refuse service to gay customers in some circumstances. | John Shinkle/POLITICO Employment Trump rule to protect contractors who discriminate against LGBT workers

The Trump administration opened the door Wednesday to permitting government contractors to discriminate against LGBT employees with a proposed rule that frames the issue as protecting companies’ religious beliefs.

The Labor Department proposal follows a string of Supreme Court decisions that protected business owners’ rights to refuse service to gay customers in some circumstances and to opt out of coverage for employees’ birth control, and that expanded churches’ ability to qualify for government funding.


In October the high court will hear arguments about whether discrimination against LGBT employees violates Title VII of the 1964 Civil Rights Act. The Trump Justice Department, reversing its previous stance under President Barack Obama, will argue that it does not.

Wednesday's proposed rule for the Office of Federal Contract Compliance Programs will clarify that government contractors may make employment decisions that align with their religious beliefs. While the rule states that contractors may not discriminate on the basis of race, sex or other protected statuses, it is likely to prompt criticism from Democrats as tacit permission to discriminate against LGBTQ employees.

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“Conscience and religious freedom rights have been given second-class treatment for too long,” a senior Labor Department official told reporters. “This fulfills the president’s promise to promote and protect our fundamental and inalienable rights of conscience and religious liberty, the first freedom protected in the Bill of Rights in the First Amendment itself.”

But in a written statement, American Civil Liberties Union Senior Legislative Counsel Ian Thompson said, "Once again, the Trump administration is shamefully working to license taxpayer-funded discrimination in the name of religion ... We will work to stop this rule that seeks to undermine our civil rights protections and encourages discrimination in the workplace.”

The rule will incorporate the Supreme Court‘s 2018 decision in Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission, which ruled in favor of a Christian baker who refused to make a custom cake for a same-sex couple. It also follows the 2014 decision in Burwell v. Hobby Lobby, which allows for-profit companies to opt out of laws that conflict with their religious beliefs, and the 2017 decision in Trinity Lutheran Church of Columbia v. Comer, which said that states cannot exclude religious institutions from state programs that have a purely secular intent.

Labor Department officials said they noticed that religious institutions such as Christian colleges were not seeking government contracts, presumably out of fear that they would run afoul of federal requirements.

“When we talked to stakeholders, we were informed that many religious organizations were not participating in the procurement process because of concerns that OFCCP would not fairly or correctly enforce the law related to the religious employer exemption,” a Labor Department official said.