States say churches (and church childcare centers) must open bathrooms to transgenders (at times)

by Gregory Tomlin, |
REUTERS/Nick Oxford

BOSTON (Christian Examiner) – The Massachusetts Commission Against Discrimination (MCAD) has issued guidelines on new state regulations concerning "public accommodation" that will likely place churches in the uncomfortable position of opening their restrooms to transgenders at certain times.

While the regulation supposedly does not affect churches during their normal religious functions, any time a church is used for a secular purpose – such as when it operates as a polling place – it must allow a person to choose the restroom based on his or her perceived "gender identity."

The law defines a place of public accommodation as any place, licensed or unlicensed, which is "open to and accepts or solicits the patronage of the general public." It also claims that such places may not restrict access or deny services to a person because of gender identity.

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.

"For example, a hotel or motel may not refuse to book a room for a person because of the person's gender identity. 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," the MCAD guidelines say.

Presumably, that also means that church outreach events open to the general public, such as a dual-purpose function (such as a combined concert and evangelistic event) would fall under the public accommodation rules.

Any violation of the rules on the part of the church, however, will not automatically result in a fine for the church. Though in a footnote in the guidelines, the MCAD notes "all charges, including those involving religious institutions or religious exemptions, are reviewed on a case-by-case basis."

The guidelines issued by Massachusetts Sept. 1 are not all that different from those recently published by the Iowa Civil Rights Commission (ICRC). Those rules claimed churches have to accommodate transgender access to bathrooms "sometimes." They also placed restrictions on what a pastor could say when speaking on the topic of homosexuality and the Bible, if the content of the sermon makes a guest feel unwelcome.

"Iowa law provides that these protections do not apply to religious institutions with respect to any religion-based qualifications when such qualifications are related to a bona fide religious purpose. Where qualifications are not related to a bona fide religious purpose, churches are still subject to the law's provisions (e.g., child care facility operated at a church or a church service open to the public)," a brochure explaining public accommodation in the Hawkeye State said.

The wording of the brochure from the Iowa Civil Rights Commission showed a striking level of unfamiliarity with the role of churches in the community and the First Amendment, attorneys with Alliance Defending Freedom claimed in a lawsuit on behalf of one Iowa church. Many churches offer childcare programs based on the idea of religious instruction for the young and all church services are open to the general public. Churches also preach biblical doctrine on human sexuality, the Bible being at odds with the modern gender identity movement, the attorneys said.

Iowa's guidelines were so threatening to churches that the publication of the brochure drew a rebuke from the U.S. Civil Rights Commission. In a letter to the chair of the ICRC, U.S. Commissioner Peter Kirsanow said the churches are open to the public at all times because they offer worship and instruction in the faith to both congregants and any guests that come.

"The ICRC's apparent misunderstanding of religious belief and practice is a many-splendored thing .... [T]he ICRC states that a child care facility operated at a church is subject to the public accommodation nondiscrimination provisions. Again, the ICRC appears to fundamentally misunderstand life in a religious community. One reason churches have child care facilities is so the faithful can have their children cared for in an environment that reflects and supports their religious beliefs. Any parent who takes his or her child to a preschool run by a church has to expect that the preschool will reflect the church's beliefs. A mere nondiscrimination statute cannot trump the First Amendment," Kirsanow wrote.

The letter and the public outcry over the regulations eventually led the ICRC to revise its brochure. It now claims that places of worship are "generally exempt" from Iowa's anti-discrimination laws, "unless the place of worship engages in non-religious activities which are open to the public. For example, the law may apply to an independent day care or polling place located on the premises of the place of worship."

The "cosmetic changes" to the language of the brochure don't fix the constitutional violation, ADF's Christiana Holcomb has claimed. She said ADF will continue to pursue its lawsuit against the ICRC.