Just days after a new Massachusetts law took effect this month ensuring trans people have equal access to spaces of public accommodation, right-wing legal powerhouse Alliance Defending Freedom (ADF) filed a lawsuit challenging the law on “religious freedom” grounds.
According to the suit, filed on behalf of “four diverse Massachusetts churches,” the new statewide law requiring all places of public accommodation to make facilities available to the public in accordance with an individual’s gender identity “[forces] churches to open their sensitive areas—like changing rooms and restrooms—to members of the opposite sex.”
“This requirement,” ADF claims, “conflicts with the religious beliefs of these churches regarding God’s design for human sexuality.”
The language in ADF’s complaint clearly reads as a dog-whistle to the transphobic right wing, in which ADF is a key player. The phrasing of the supposed injury—“open their sensitive areas… to members of the opposite sex”—is clearly drafted to evoke visions of sexual violation, a tried-and-true (though patently false) scare tactic anti-LGBT activists frequently use to defeat nondiscrimination policies.
Even setting aside the fact that ADF’s claim belies a fundamental misunderstanding of what it means to be transgender (transgender women are women, not men), and its erroneous conflation of gender identity with sexuality, the case is flimsy at best. ADF claims the state is “threatening these churches with fines and imprisonment simply for operating consistently with their faith,” and alleges that this threat is made in a single sentence amid nine pages of guidance from the Massachusetts Commission Against Discrimination (MCAD).
Despite ADF’s renewed outrage, the Massachusetts Commission Against Discrimination has, for the past 15 years, held that denial of service or refusal to grant equal access to transgender people is sex-based discrimination.
Since 2012, the state has explicitly prohibited gender-identity-based discrimination in employment, housing, lending, credit and mortgage services. These policies hew closely to federal guidance and rulings from the Equal Employment Opportunity Commission that have determined discrimination on the basis of gender identity is not only unlawful in itself, but also a type of sex-based discrimination grounded in a person’s “failure” to adhere to societally enforced gender norms.
The trans-affirming law that Republican Gov. Charlie Baker signed in July simply “codified this prohibition of discrimination on the basis of gender identity in places of employment, housing, mortgage services and places of public accommodation,” according to the MCAD guidance.
In adherence to existing legal definitions used in Massachusetts, the MCAD guidance defines a place of public accommodation as “any place, whether licensed or unlicensed, which is open to and accepts or solicits the patronage of the general public.” Noting that this definition includes a “wide variety of public and private places,” the guidance specifically explains that “Even a church could be seen as a place of public accommodation if it holds a secular event, such as a spaghetti supper, that is open to the general public.”
That sentence, along with a note on the attorney general’s website clarifying that “houses of worship” may be considered places of public accommodation, prompted ADF to file suit.
(In an uncharacteristic missed opportunity to stir up conspiracy theories about the “gay agenda,” ADF neglected to mention that Attorney General Maura Healy was not only a member of the legal team that brought marriage equality to Massachusetts more than a decade ago, but also became the nation’s first openly LGBT attorney general when she was elected in 2014.)
“All events held at a church on its property have a religious purpose,” ADF legal counsel Christiana Holcomb told the Christian Broadcasting Network. “And the government has no authority to violate the First Amendment’s guarantees of freedom of religion and speech.”
But nowhere does ADF mention the increasingly common practice of churches renting or donating space to community organizations, youth, or wellness groups that may be secular. The Commission’s example of a “spaghetti supper” open to the public appears intended to demonstrate that use of church facilities, including parking lots, lawns, and other spaces not directly underneath a church’s roof, could be subject to nondiscrimination policies if those events are advertised as open to the public and, as it clearly noted, if they are “secular.”
The guidance in no way requires churches, as religious entities, to change existing policies around gender identity. During worship services and all other explicitly religious events (which, yes, would include a spaghetti dinner worship service), the churches that filed suit (and any other house of worship in the state) is free to discriminate against trans people, or gay, lesbian, and bisexual citizens. Any pastor who so wishes will continue to be able to preach the misguided transphobia that ADF champions as a fundamental “religious freedom.”
But if a church donates its parking lot to a neighborhood farmer’s market, which advertises itself as open to the public, the new law essentially bars church members from demanding proof of gender identity before granting a farmer’s market patron access to the bathroom. That’s not an infringement on religious freedom—that’s simple adherence to state law that regulates all business that serves the public.