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Executive order protecting state employees from gender identity bias is ‘aspirational’ according to state AG

June 3rd, 2016  |  Deborah Hammonds

The Louisiana Attorney General’s office has called the executive order extending protections from discrimination based on gender identity to state employees “merely aspirational and without any binding legal effect.”

On April 13, Louisiana Governor John Bel Edwards signed executive order JBE 2016-11, which provides employment protections for state employees and employees of state contractors on the basis of gender identity, sexual orientation, race, color, religion, national origin, age, disability or political affiliation. The executive order also prohibits discrimination in services provided by state agencies and recognized an exemption for churches and religious organizations.

On May 24, in response to a request from several state representatives, Louisiana Attorney General Jeff Landry issued an opinion on whether the Governor had exceeded his authority by extending anti-discrimination protections based on gender identity to state employees. While there is no state law protecting lesbian, gay, bisexual or transgender (LGBT) Louisianans from employment discrimination, former Governors Edwin Edwards and Kathleen Blanco signed similar executive orders.

According to the Attorney General, “while nothing prohibits the Governor from issuing an Executive Order and such orders are statutorily authorized, the content does not constitute nor can it substitute for legislation.” While JBE 2016-11 may purport to establish a new, legally protected class, that is not the case because an executive order may not do so. “‘Gender identity’ is not and has never been a legally protected class under state or federal anti-discrimination laws.” Therefore, the executive order should be interpreted as “merely aspirational and without any binding legal effect” because an executive order cannot expand or create state law. The opinion also stated that JBE 2016-11 had not legally binding effect regarding contracts and, because an executive order may not expand or create state law, JBE 2016-11 could not be the basis for liability or a cause of action initiated by or against the state.

On May 25, the Governor released the following statement in response:

“It is my obligation as the Governor of Louisiana to responsibly lead in developing and implementing best policies and practices across executive agencies so that state government operates in a manner worthy of the people of Louisiana. However, the attorney general has overstepped the authority given to his office, and he is now attempting to erode the constitutionally granted executive order power of the governor and disrupting the work of state agencies. My executive order, as has been the case with previous executive orders, is a fully constitutional, good faith effort by the state to eliminate employment discrimination of any kind,” said Gov. Edwards. “More importantly, this executive order, for the first time, was written in a way that respects the religious beliefs of every single person in Louisiana. Discrimination, of any kind, is not a Louisiana value, and I will do everything in my power, including enforcing this order, to foster a productive and welcoming work environment in Louisiana’s state government.”

In his letter to legislators requesting the opinion by the Louisiana Attorney General, State Representative Mike Johnson (R-Bossier City) indicated that Gov. Edwards’ executive order raised serious “structural questions under the Louisiana Constitution,” citing language that refers to state “officers” and “political subdivisions.” However, identical language has been included in executive orders by previous administrations that Rep. Johnson praised at the time of their signing.

“Rep. Johnson, it seems, is taking a sudden interest in the constitutionality of language with which he had no objection prior to his current political pursuits,” Gov. Edwards continued. “Discrimination isn’t welcome in Louisiana, but as is the case often, folks running for office seem to forget that we have an obligation to protect all of our citizens. I am not deterred by these actions by Rep. Johnson and the attorney general, and instead am more committed than ever to doing what’s right for the people of Louisiana within the full authority of the Louisiana constitution.”

Title IX guidance. Included in the May 24 opinion is the Attorney General’s stance on the Obama administration’s guidance regarding Title IX and transgender student access to bathroom and locker facilities. The state representatives sought an opinion on whether Louisiana school districts must comply with the guidance and/or whether a legal challenge may be appropriate. The Attorney General declined to issue an opinion, stating it was the policy of the Attorney General’s office not to issue an opinion interpreting federal law or addressing matters that are in or likely to be in litigation. However, because the guidance is “of great concern and creates an immediate harm” to Louisiana, causing confusion and chaos in planning for state and local funding, the opinion includes a copy of the letter sent to various stakeholders who receive Title IX funds addressing the current status of federal law on the issue. The letter is attached to and incorporated into the opinion in response to the representatives’ questions regarding the legal effect and enforceability of the guidance.

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