Church’s “Public Accommodation” and Gender Identity

Posted on by Jocelyn Szymanowski in Church Law.

The question of churches and gender identity have again come to the forefront of the news. The recent events in North Carolina and the recent joint guidance provided by the U.S. Departments of Education and Justice have raised issues of religious freedom and civil rights.

Churches have expressed questions on (i) whether church buildings and services are required to comply with the recent joint guidance provided by the U.S. Departments of Education and Justice, (ii) whether churches are exempt from this joint guidance and/or state law, and (iii) if compliance is mandated, what liability do churches face in failing to comply.

Maryland is one of eighteen states where gender identity is legally protected by statute. In May 2014, Senate Bill 212 of the Fairness for All Marylanders Act of 2014 was signed into law by Gov. O’Malley. The Act updated Maryland’s Civil Rights Law to include protection on the basis of gender identity.

The Civil Rights Law of Maryland, prior to Fairness for All Marylanders Act of 2014, prohibits discrimination on the basis of race, sex, age, color, creed, national origin, marital status, sexual orientation, or disability in a “place of public accommodation.” The Act added “gender identity” to the list of protected classifications under the Civil Rights Law. A “place of public accommodation” is one of four things: (1) a hotel, motel, or other “establishment that provides lodging to transient guests”; (2) a restaurant, cafeteria, bar, or other “facility principally engaged in selling food or alcoholic beverages for consumption on or off the premises”; (3) a movie theater, concert hall, sports arena, or other “place of exhibition or entertainment,” or (4) a “retail establishment” that offers “goods, services, entertainment, recreation, or transportation.”

Religious organizations are provided an exemption under the Act. As such, churches have no legal obligation to comply with the law of “public accommodation.”

In October 2015, Maryland State Department of Education issued guidelines suggesting that schools provide access to restrooms and locker-rooms that correspond to student’s gender identity. These guidelines do not impact churches.

The recent joint guidance released on May 13, 2016 by the U.S. Departments of Education and Justice is directed only to schools and educators. It is not a blanket policy covering all public accommodations. It does not issue a mandate to churches.

Under Title IX of the Education Amendments of 1972, schools receiving federal money may not discriminate based on a student’s sex, including a student’s transgender status. According to the joint guidance, the Departments of Education and Justice treat a student’s gender identity as the student’s sex for purposes of enforcing Title IX. This also does not impact churches.

The discussion of gender identity and the civil rights questions it raises is ongoing. Changes in the political climate, cases pending before various courts and public opinion will continue and develop. The current state of law for Maryland churches is concise – churches are exempt from the Fairness for All Marylanders Act of 2014 and therefore gender identity does not put a burden on Maryland churches; or expose Maryland churches to liability for compliance with public accommodation requirements.