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Massachusetts Churches Challenge Gender Identity Laws

Written by Lawrence Opalewski on October 17, 2016 Category: First Amendment, Free Speech, Religious Institutions

A group of Massachusetts churches has brought a federal lawsuit seeking to prevent state officials from enforcing new gender identity guidelines on religious institutions.

In July 2016 the Massachusetts Legislature added “gender identity” as a protected class under state public accommodation laws. On September 1, 2016 the Massachusetts Commission Against Discrimination (“MCAD”) issued guidelines stating that a church could be seen as a place of public accommodation if it hosted a secular event open to the public. The Massachusetts Attorney General also stated that houses of worship are places of public accommodation. These developments were significant because they could mean that Massachusetts officials intend to enforce the gender identity public accommodation guidelines against religious institutions.

On October 11, 2016 a group of four churches brought suit in the Massachusetts federal court. The purpose of the suit is to prevent state officials from enforcing the new gender identity guidelines against religious institutions. The churches allege that the new guidelines will force churches to “allow individuals access to church changing rooms, shower facilities, and restrooms based on their gender identity, and not their biological sex, in violation of the churches’ religious beliefs.” The churches also allege that the new guidelines will “force churches and pastors to refrain from religious expression regarding biological sex and gender identity.” The churches filed a motion for preliminary injunction to prevent enforcement of the law during the case.

The churches’ legal theories are based on the First and Fourteenth Amendments. First, the churches argue that the law infringes on church autonomy and the freedom to communicate their beliefs verbally, in writing, and through the use of their facilities. The First Amendment, through the Free Exercise clause and Establishment clauses, guarantees churches the right to determine their own policies, doctrine, and administration. The churches argue that forcing them to comply with the gender identity guidelines infringes upon these freedoms.

Next, the churches argue that the law allows state officials to determine which church activities are “sufficiently religious” or not. By declaring certain church activities to be “secular,” state officials enable themselves to enforce the gender identity guidelines on those events. The churches argue that this violates the Free Exercise and Establishment clauses since it would involve the government in church decisions. Since these determinations would be made on a case-by-case basis, the churches argue that the law should be subject to strict scrutiny.

The churches also argue that the law is a content-based restriction on protected speech. The law includes a provision that bans public accommodations from any communication that might discriminate against persons of any gender identity. The churches contend that this provision regulates the content of their speech, specifically their ability to communicate their teachings on issues of gender identity and sexuality. The churches argue that such a content-based restriction should be subject to strict scrutiny and struck down.

With the claims described above and the other claims included in the lawsuit, the churches are essentially arguing for their rights to teach their own views and follow their own policies on the gender identity issue. They fear that the new Massachusetts law will infringe on those freedoms. This case will be interesting to watch as gender identity laws continue to come into conflict with religious freedom principles. If the churches can successfully argue that the law is content-based and should be subject to strict scrutiny, their chances of success will increase substantially. You can view the complaint here, and the motion here.

The attorneys at Dalton & Tomich have successfully challenged many ordinances and government policies that violate the First and Fourteenth Amendments. We represent religious institutions, individuals, nonprofits, and other legal entities. If you feel that your rights are being violated, please do not hesitate to contact us. We would be happy to speak with you.

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