President Biden has now signed several executive orders that are intended to significantly change policies that were in place during the Trump administration. As we discussed in our first episode, we know that “Times Are Changing in America.” It’s important to remember in times like these that God’s Word never changes. The principles found in His Word are eternal.
In a fallen world, we know governments can and will change. As we can clearly see from the last twenty-four hours, times are indeed changing in our country, and churches and ministries need to be prepared to meet new challenges. Regardless who is in power in the White House, the mission of the Gospel must go forward.
Today, President Biden released the “Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation.” The stated purpose of this order is to “prevent and combat discrimination on the basis of gender identity or sexual orientation, and to fully enforce Title VII and other laws that prohibit discrimination on the basis of gender identity or sexual orientation.”
President Biden stated that “it is also the policy of my Administration to address overlapping forms of discrimination.” This executive order is designed to create policy across all agencies within the federal government, and each agency is to formulate a plan for implementation during the next 100 days to present to the Attorney General for review. This shift will affect all the agencies that have oversight of federal programs. This will be a systematic and foundational implementation of this policy within our federal government.
The executive order references Bostock v. Clayton County, a case ruled upon by the Supreme Court during the Trump Administration, which answers the question of whether or not Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination “because of . . . sex,” encompass discrimination based on an individual’s sexual orientation. Short answer: the Supreme Court determined that the word “sex” in Title VII of the Civil Rights Act of 1964 includes sexual orientation, not limited to gender as initially intended in 1964.
Bostock v. Clayton County involved Gerald Bostock, a gay man, who began working for Clayton County, Georgia, as a child welfare services coordinator in 2003. In 2013, Bostock began participating in a gay recreational softball league. Shortly after, Bostock received criticism for his participation in the league and for his sexual orientation and identity generally. Clayton County terminated Bostock allegedly for "conduct unbecoming of its employees."
In a 6-3 majority opinion, the Supreme Court ruled that an employer who fires an individual employee merely for being gay or transgender violates Title VII of the Civil Rights Act of 1964. Justice Neil Gorsuch authored the majority opinion. Before the Supreme Court ruling, Title VII prohibited employers from discriminating against any individual “because of such individual’s race, color, religion, sex, or national origin.” In 1964, sex was understood to refer to one’s biological gender at birth. An employer could not discriminate against an individual because he or she was biologically male or female.
The Court reinterpreted that an employer violates Title VII when it intentionally fires an individual employee based, at least in part, on sex. Discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat employees differently because of their sex (albeit self-identified), the very practice Title VII prohibits in all manifestations. Although the court acknowledged that few in 1964 would have expected Title VII to apply to discrimination against homosexual and transgender persons, the Court gave no weight to legislative history because the language of the statute unambiguously prohibits the discriminatory practice.
Justice Samuel Alito authored a dissenting opinion, in which Justice Clarence Thomas joined, criticizing the majority for attempting to “pass off its decision as the inevitable product of the textualist school of statutory interpretation” but actually revising Title VII to “better reflect the current values of society." In essence, Justice Alito and Justice Thomas stated that the Supreme Court updated or created new legislation to reflect current cultural thinking instead of forcing the legislature to revise or pass new legislation addressing the issue. Justice Brett Kavanaugh also authored a dissenting opinion arguing that, as written, Title VII does not prohibit discrimination on the basis of sexual orientation (or by extension, transgender status).
Many church and ministry leaders were and still are concerned this ruling will significantly impact their employment practices. At this time, religious, faith-based, and ecclesiastical employers are exempt from Title VII. This exemption means that churches, Christian schools, Christian day cares, and other ministries are not required to comply with Title VII. This has historically been the case as well. At this point, this Supreme Court decision will not directly affect your church or ministry.
However, employers who are not faith-based, religious, or ecclesiastical and who employ fifteen or more employees do fall under Title VII. These employers will need to clearly document reasons for any termination or adverse employment actions against an employee in a protected category. This documentation needs to clearly demonstrate that the adverse actions were for nondiscriminatory reasons.
Christian schools, universities, and ministries should consider reviewing their bylaws, employment policies, and employment practices to ensure their ministry has clear policies that demonstrate their statement of faith is shared by all employees and their code of conduct reflects the values of the ministry. These ministry documents and practices will be vitally important to ensure that ministries can continue to hire and handle employment issues in a manner that reflects their faith and practice.
As Christians, we understand the morality that once defined our legal system is no longer being upheld. The Truth of God's Word is no longer the basis for court decisions, including the Supreme Court. For now, this decision does not impact churches or Christian ministries in any way. However, we know that the push from Washington will continue to intensify on this subject in coming days. We must remember the passage from Scripture: "And now, Lord, behold their threatenings: and grant unto thy servants, that with all boldness they may speak thy word” (Acts 4:29). We must continue to be bold and declare the Word of God like never before as the battle for souls in our country intensifies.
At the National Center for Life and Liberty, we will continue to monitor this issue; and we want to work with your church to ensure your bylaws are current, your employee or student handbook is updated, and your employment documents are in order.
Please contact our office today to conduct a review to ensure you are protected in this increasingly hostile world! We will continue to pray for maximum ministry with minimum liability in your community.