What’s So Wrong With Indiana’s SB100?

This blog post was co-authored by Jennifer C. Pizer, Lambda Legal Senior Counsel and Law and Policy Project National Director, and Camilla Taylor, Lambda Legal Counsel.

SB100 denies LGBT people protections others receive, invites discrimination against transgender people, eliminates local civil rights laws, and protects both licensed professionals who discriminate and religiously affiliated medical and social service providers that discriminate with public funds.

SB100 is presented as a bill to add sexual orientation and gender identity protections to Indiana law, which lesbian, gay, bisexual and transgender LGBT Hoosiers urgently need.

Unfortunately, the bill that was introduced provides little meaningful protection from discrimination for transgender people and includes damaging carve-outs and exemptions targeting all LGBT people in Indiana.

The bill also would roll back some existing protections from discrimination, not just for LGBT people but for all people who rely on broader local civil rights laws in the state—whether based on race, sex, disability, or other protected characteristics. This bill also puts at risk the most vulnerable members of our community, including children, who may need medical or social services from religious-affiliated hospitals, nursing homes, homeless shelters, or foster care services funded by public contracts or grants.

Here are just a few of the troublesome provisions of this proposed legislation:

• If the bill were enacted, it would allow religiously affiliated hospitals and adoption, foster care and other social service agencies that receive taxpayer funding to discriminate based on religious views about marriage when providing services. Some of the bill’s provisions specifically target LGBT people, and others permit discrimination by religiously-affiliated organizations against anyone. For example, a religiously affiliated hospital may refuse to respect the marriage of a same-sex couple when determining who is authorized to visit a sick patient or make medical decisions for an incapacitated spouse. A child welfare agency may refuse to place a foster child with a lesbian or gay relative, regardless of whether that placement serves the child’s best interest, solely based on the marriage-related religious beliefs of the agency. A publicly funded homeless shelter or soup kitchen may turn away single mothers. The bill further says that the state, counties, cities and towns may not deny public contracts to agencies because they discriminate against people based on such religious beliefs.
• The proposed bill preempts numerous stronger local ordinances. This means that cities such as Indianapolis, which have passed robust protections from discrimination based on sexual orientation and gender identity, and which insist that their city contractors not discriminate, would no longer be able to enforce those protections.
• The bill authorizes employers, business and social service agencies to create sexual orientation-specific and gender identity-specific dress codes and policies on restrooms, and protects employers from any liability if they do so. Transgender people experience more discrimination at work and in public accommodations than other members of our community, and anti-trans discrimination often takes the form of an employer terminating or penalizing an employee because of the employee's gender presentation (for example, dressing consistent with his or her identity) or use of a restroom consistent with the employee’s gender identity. This provision is a road map for employers, businesses and service agencies to discriminate against transgender people. It defeats much of the protection from discrimination that transgender Hoosiers need, and that the bill purports to create.
• The bill requires Indiana’s attorney general to defend, at state taxpayer expense, public and charter schools that are accused of discriminating against transgender children or youth, such as by requiring clothing inconsistent with their gender identity or preventing them from using the appropriate restroom. As both we and the United States Departments of Justice and Education have pointed out, forcing a transgender child to use a restroom that is inconsistent with the child’s gender identity both causes psychological harm, and constitutes discrimination under federal law. By shifting the burden of defending discrimination from school boards to the state, this provision actually incentivizes school boards to discriminate.
• The bill targets LGBT people with a gaping exemption from discrimination protection when a business that discriminates has fewer than four employees (not counting family members) and the discrimination is even tangentially related to a wedding. Thus, the bill allows such a business to turn away same-sex spouses with respect to facilities, goods and services, such as by refusing to provide food, flowers, clothing, rental of sound equipment, a limousine or a venue, not just for wedding ceremonies but also for a rehearsal dinner, any celebration or “social event,” and even for an anniversary party years after the marriage.
• The bill forbids the state from denying licenses to professionals or entities (such as health care professionals, counselors or hospitals) that proselytize or otherwise mistreat LGBT people in violation of applicable standards of care, as long as they're not violating other laws or independently subject to disciplinary action. This invites professionals such as licensed therapists with anti-LGBT biases to refuse to counsel adults about same-sex relationships, and biased school counselors to condemn LGBT teens who seek their help, in violation of professional and ethical standards. Such conduct in the course of providing care often is damaging to the mental health of LGBT patients and students, especially to young adults struggling to cope with the stresses of their lives.

Hoosiers deserve better. The proposed bill enshrines second-class status for LGBT people and withholds protections where they are most needed. As we expressed in our letter to Gov. Mike Pence and legislative leadership two days ago, Hoosiers are expecting an updating of Indiana’s civil rights laws to include sexual orientation and gender identity without hurtful carve-outs, overly broad religious exemptions, or elimination of local protections. Equal should be equal for everyone. It’s as simple as that. And it’s time.