Last week, two major Religious Right groups filed a lawsuit against the U.S. Department of Education and an Illinois school district, trying to stop them from protecting the rights of transgender students. The lawsuit, filed by Alliance Defending Freedom and the Thomas More Society on behalf of 51 families, allege that the school district's policy of allowing a transgender student to use the locker room that matches her gender identity violates laws and constitutional provisions designed to protect religious exercise. . In other words, this is yet another attempt to discriminate against LGBT people—in this case, transgender students—based on religious belief.
The lawsuit invokes a grab-bag of legal provisions: the constitutional right to privacy, the constitutional right to direct children’s upbringing, and Title IX of the Civil Rights Act, which states that no person can be excluded from participation in or be subjected to discrimination under an education program receiving federal funds. But the lawsuit makes claims under the Constitution’s Free Exercise Clause and the federal and Illinois Religious Freedom Restoration Acts, contending plaintiffs’ religious exercise has been burdened.
When first proposed and enacted, Religious Freedom Restoration Acts (RFRAs), were supposed to be about protecting religious liberty, especially for religious minorities. But more and more, people seek to use these laws to discriminate against individuals and groups. Kim Davis, the Kentucky clerk who refused to issue marriage licenses to same-sex couples back in 2015, used the Kentucky RFRA as justification for her actions in her appeal to Sixth Circuit Court of Appeals; a photography company in in New Mexico tried (and failed) to use the state’s RFRA to deny service to a same-sex couple; and a printing company used the Kentucky RFRA to deny service to a LGBT rights organization. And of course, Hobby Lobby successfully used the federal RFRA to deny contraceptive coverage to its workers, in the Supreme Court case Burwell v. Hobby Lobby.
In this case, the families insist that their rights under both the federal and Illinois RFRAs, as well as the Constitution’s Free Exercise Clause, are violated by the school district’s policy, established in accordance with federal law, to protect the rights of a transgender student..
Does this seem like an innocent legal action by parents trying to protect their daughters? Not so fast. First off, these claims are false. This is simply an extension of the Religious Right’s strategy to find non-religious justifications, often rooted in fear, for discrimination based on its religious beliefs. Yet, as Mark Joseph Stern says in his brilliant Slate article on the subject, "...hostility toward trans people remains fundamentally religious; the same Christian denominations that lined up against the validity of same-sex marriages have lined up against the validity of the trans identity."
And one look at who is representing these families puts paid to any lingering notions that this lawsuit is at all benevolent. The Alliance Defending Freedom shows up like a bad penny in anti-LGBT campaigns across the nation. The group has also drafted damaging state “religious freedom” laws, and prior to the Supreme Court’s decision on marriage equality, its representatives frequently testified against state laws to establish marriage equality; they also resist bans on "ex-gay" therapy. It's clear that the agenda behind this suit is not to protect high school girls, but to severely limit the rights of one young transgender student while also setting a harmful precedent in the courts.
When organizations like Alliance Defending Freedom wave RFRA like a sword around in court, their ultimate goal is not to spread religious liberty to all– it's to take away hard-earned protections against discrimination.