How do Ministries Respond to Emerging Gender Identity Issues?

Since the 2015 Supreme Court ruling on same-sex marriage, gender identity issues have received a great deal of media attention, and the rights of transgender individuals have increasingly become the subject of government agencies and governing bodies. Ministry leaders generally want to express a welcoming attitude toward everyone, whether or not the ministry promotes a sincerely held religious belief regarding human sexuality. Many ministry leaders have questions regarding what the law requires and how they can accommodate transgender individuals without compromising their religious beliefs. The following series of questions and answers may shed some light on the latest developments concerning this emerging trend.

What does the law say about gender identity?

Title VII of the Civil Rights Act is a federal law that protects the civil rights of certain employees. Title VII does not specifically recognize transgender individuals as a protected class. In recent years, however, the Equal Employment Opportunity Commission (EEOC) has interpreted Title VII’s prohibition of sex discrimination as forbidding employment discrimination based on gender identity.¹

Approximately 20 states and more than 200 cities and counties, also have adopted gender identity non-discrimination laws.² State laws and local ordinances vary significantly, covering non-discrimination in employment, housing, and/or public accommodation.

What potential legal impact do these civil rights laws have on ministry organizations?

Generally, federal and state law continues to uphold the rights of religious organizations to make decisions that are consistent with their sincerely held religious beliefs.

Many laws addressing gender identity issues specifically exempt religious institutions. Even if state and local laws are silent with respect to religious institutions, ministries still may be able to rely upon the first amendment of the U.S. Constitution to protect their right to operate in accordance with their sincerely held religious beliefs.

What have courts said?

In 2000, the U.S. Supreme Court decided Boy Scouts of Am. v. Dale, 530 U.S. 640. In this ruling, the court recognized that forcing organizations to include persons who do not conform to the organization’s beliefs might infringe upon the organization’s freedom of expressive association protected under the First Amendment.

To balance competing interests, the Supreme Court examined three key components of the case:

1. Whether the ministry (Boy Scouts of America) engaged in expressive association.
2. Whether forced inclusion of a transgender or homosexual significantly affected the ministry’s ability to advocate public or private viewpoints.
3. Whether the ministry’s interest in expressive association would outweigh the state’s interest in eradicating discrimination.

In effect, this ruling generally permits a ministry to exclude transgender and homosexual individuals if including them would interfere with the ministry’s viewpoints (sincerely held beliefs).

Because laws can vary by jurisdiction, ministry leaders should always consult with a locally licensed attorney before taking action that might may result in a claim of improper discrimination.

What can ministries do to respond to this trend?

One of the most effective ways that ministries can protect themselves from discrimination claims is by clearly communicating the religious beliefs of the organization. This starts by facilitating a consistent and unified understanding of the organization’s core beliefs among pastors, ministry counselors, and other ministry leaders. Leaders should ensure that all representatives of the ministry understand the organization’s core beliefs and that they are able to accurately and consistently articulate those beliefs.

Ministries should advise members, regular attenders, and other individuals who might wish to use their facilities why the ministry exists and its core beliefs.

Ministry leaders should convey to governmental agencies, state and federal courts, and other outside institutions that the ministry embraces a set of sincerely held religious beliefs. Leaders should document the organization’s beliefs within its foundation and operational documents. It’s a good idea to post the purpose statement where it is prominently displayed and easy to find, such as on the “About Our Ministry” page of the ministry’s website. Ministry leaders also can incorporate, or reference, the ministry’s purpose statement in its operational documents, such as membership applications, employee handbooks, activity participation agreements, facility use agreements, and other relevant organizational policies.

Is insurance coverage available to protect ministries in the event of a lawsuit?

Insurance coverage is available from some insurance providers, but not all coverage is equal, even among those that specialize in ministry-related insurance. Avoiding every potential claim or lawsuit that may result from belief-based decisions and practices is impossible, but ministries should carefully consider the issues and take steps to prevent or mitigate potential claims wherever possible.

Brotherhood Mutual offers a broad Religious Freedom Protection coverage that protects ministries from potential claims resulting from religious activity, religious communication, and alleged discriminatory acts. This coverage also protects ministries by reimbursing expenses that result from specified legal action, including tax-exempt challenges, targeted governmental actions, and law enforcement inquiries.

¹What You Should Know About EEOC and the Enforcement Protections for LGBT Workers

²Human Rights Campaign

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