Not so fast: Massachusetts AG office says churches not always exempt from ‘bathroom bill’

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Churches in Massachusetts may still have to allow biological men who identify as women to use the women’s bathroom in some cases, state officials say.

The state’s new transgender law applies to churches if they are hosting a purely secular event open to the public, the state Attorney General’s office said today.

The Attorney General’s office clarified the issue after a column appeared on the NewBostonPost web site earlier today claiming Attorney General Maura Healey had surrendered to church groups.

The transgender law — also called the Bathroom Bill — provides that people who identify with the opposite sex cannot be discriminated against in public accommodations. The law was approved this past July and took effect October 1.

The Attorney General’s office’s web site initially included “houses of worship” as among the public accommodations affected by the law. The state’s anti-discrimination agency initially included a “spaghetti supper” as among the examples of an event at a church that wouldn’t be exempt from the law.

Four churches filed suit in federal court October 11 claiming that the Attorney General and the Massachusetts Commission Against Discrimination were violating their First Amendment rights to the free exercise of their religion by forcing them to allow people of one biological sex to use changing rooms, showers, and bathrooms set aside for the other sex.

Supporters of the gender-identity law argue that transgender people need and deserve explicit legal protection from discrimination. Opponents of the law argue that women and girls could be at risk in public bathrooms if people who are biologically male are allowed to use them.

In the wake of the churches’ lawsuit, the Attorney General’s office removed “houses of worship” from a list of public accommodations affected by the law. The state Commission Against Discrimination removed the spaghetti-supper example.

The churches claimed victory, but a spokesman for the Attorney General said today that the office merely tweaked its web site to reflect longstanding legal interpretation in Massachusetts that religious facilities are exempt from public-accommodations laws in certain circumstances, such as worship services.

Emily Snyder, a spokesman for Healey, said the Attorney General isn’t backing off the law.

“The transgender public accommodations law provides critical protections for transgender people and their families, and we are very pleased that the plaintiffs have dismissed their suit,” Snyder said in an email message.

Snyder said the Attorney General’s office will consider examples on a case-by-case basis, and offer guidance in specific cases if contacted.

But a supporter of the churches’ lawsuit said it would be hard to envision an event sponsored by a church that doesn’t have a religious component.

“So nobody really knows what a ‘public, secular’ function is. I can’t think of anything a church does that is not a religious function and an expression of its religious belief,” said Andrew Beckwith, president of the Massachusetts Family Institute.

In an interview, Beckwith said the initial inclusion of “houses of worship” on the Attorney General’s web site was “flat-out wrong, legally,” and that the Attorney General’s decision to remove the reference is significant.

“They’re on notice that you can’t run roughshod over the First Amendment or religious organizations in Massachusetts. I think these are both important corrections that have been made, and perhaps even an education for both the Attorney General’s office and MCAD over what the First Amendment means in this country,” Beckwith said.

Snyder said the Attorney General’s office merely made a minor revision, and did not change its interpretation of the law or state policy.

A spokesman for the Massachusetts Commission Against Discrimination could not immediately be reached for comment.

A lawyer in the Attorney General’s office informed a lawyer for the churches last month that the Attorney General’s office removed the reference to “houses of worship” because it conflicts with a Massachusetts Supreme Judicial Court ruling from 2002.

In that case, the Nation of Islam barred women from attending a speech by Louis Farrakahn at a city-owned theater in Dorchester designed to combat crime, violence, and drugs. A woman kept from attending the speech argued the event was a public accommodation and that denying her entry amounted to illegal discrimination on the basis of her sex. But the court, noting that the Nation of Islam practices separation of the sexes, found that a meeting sponsored by a mosque was not a public accommodation.

The court ruling stated that the plaintiffs did not make a case that Farrakahn’s speech was “a public, secular function.”

Revised guidelines issued by the Massachusetts Commission Against Discrimination earlier this month make reference to the court ruling (known as Donaldson versus Farrakhan).

The guidelines state:  “The law does not apply to a religious organization if subjecting the organization to the law would violate the organization’s First Amendment rights. … However, a religious organization may be subject to the Commonwealth’s public accommodations law if it engages in or its facilities are used for a ‘public, secular function’.”

The guidelines no longer offer examples of what a “public, secular function” sponsored by a religious organization might be.

A referendum seeking to repeal the Bathroom Bill is expected to go to Massachusetts voters in November 2018.