Churches, Gender Identity, and Bathroom Access

In a recent landmark ruling, a federal district court in Iowa addressed the potential liability of churches under the nondiscrimination provisions of a “public accommodations” law for failing to provide restroom and shower facilities according to a person’s “gender identity” as opposed to gender at birth. Fort Des Moines Church of Christ v. Jackson, 2016 WL 6089842 (S.D. Iowa 2016).

This article will review the facts of this case, explain the court’s ruling, and assess the possible significance of the case to churches and church leaders.

A church in Des Moines, Iowa, claimed that state and municipal antidiscrimination laws unconstitutionally interfered with its constitutional rights. The church wanted to communicate messages that would place qualifications based on gender identity on who may use its restrooms and showers. It also wanted to explain its views supporting these qualifications through a sermon by one of its pastors. To these ends, it sought a preliminary injunction enjoining the enforcement of certain provisions of the Iowa Civil Rights Act (ICRA) and the Des Moines City Code, both of which prohibit places of public accommodation from discriminating based on gender identity. Both laws contain exemptions for religious acts of religious institutions. The members of the Iowa Civil Rights Commission (ICRC) and the state attorney general (collectively “the State Defendants”) and Defendant City of Des Moines (“the City”) asked the court to dismiss the church’s request for a preliminary injunction.

The church offers religious ministries, worship services, and other events and activities to its members and the public at large. It holds three weekly services, all open to the public. In addition, it regularly opens its facility to the public for weddings, funerals, and recreational and community activities, such as child care, a food pantry, and potluck dinners. The church asserted that even those activities that may not seem overtly religious are “religious in nature because they engender other important elements of religious meaning, expression, and purpose.” The church was emphatic that it does not wish to allow the use of its facility in any manner that is inconsistent with its religious mission and doctrine.

The church has two multioccupancy restrooms, each designated for the exclusive use of either males or females. Each restroom is equipped with a shower. The showers are located within the restrooms and they share an entrance. Additionally, the facility has two single-occupancy restrooms also designated for the separate use of each sex. The church views these designations as being limited to biological males or females. According to its beliefs, “sex” is an individual’s biological sex, determined at the time of birth by the individual’s anatomy, physiology, and chromosomes. The church has maintained an unwritten policy that areas designated for sex-specific use may only be used by members of that biological sex—a policy that comports with its religious teachings.

As a result of recent public attention given to gender identity and restroom access, the church decided that its policy should be clarified for its members and the public. Its leadership team adopted a written policy regarding the use of its facilities:

Despite the above language regarding its intent to distribute the policy, the church has not publicized or distributed the policy due to its belief that such publication and distribution would subject it to enforcement proceedings before the ICRC or the Des Moines Civil and Human Rights Commission pursuant to state and municipal antidiscrimination laws.

Several Iowa statutes and Des Moines ordinances were the focus of this lawsuit. In 2007, the Iowa legislature amended Iowa Code section 216.7 to bar places of public accommodation from discriminating against individuals on the basis of sexual orientation or gender identity. Iowa Code section 216.7 provides:

Iowa Code section 216.2(13) defines a place of public accommodation as follows:

The ICRC released a brochure intended to serve as a guide to its interpretation of Iowa law with respect to civil rights issues concerning sexual orientation and gender identity. The brochure was titled Sexual Orientation & Gender Identity: A Public Accommodations Provider’s Guide to Iowa Law. In the original brochure, the ICRC posed the question “Does This Law Apply to Churches?” In response to that question, the ICRC posited the following:

Not long after the church filed its lawsuit seeking a preliminary injunction, the ICRC removed the original guide from its website and replaced it with a new one. The current version contains the subsection “Places of Worship,” which states:

Both versions of the brochure contained a disclaimer: “This guidance document is designed for general educational purposes only and is not intended, nor should it be construed as or relied upon, as legal advice.”

The Des Moines City Code similarly forbids discrimination based on gender identity and other protected classes. Gender identity was added to the ordinance in 2011. Des Moines City Code section 62-136 provides:

It shall be an illegal discriminatory public accommodations practice for any person, owner, lessor, lessee, sublessee, proprietor, manager, superintendent, agent, or employee of any place of public accommodation to:

Des Moines City Code section 62-1 defines a place of public accommodation to include any organization that “caters or offers goods, services, facilities, privileges, advantages, and accommodations to the public.”

Des Moines City Code section 62-137 states: “Nothing in this article shall be construed to apply to the following: (1) Any bona fide religious institution with respect to any qualifications the institutions may impose based on religion, sexual orientation, or gender identity, when such qualifications are related to a bona fide religious purpose.”

Notwithstanding the religious exemption in both the state and municipal nondiscrimination laws, the church feared that it might qualify as a “public accommodation” through its gratuitous offer of services to the public at large. As a result, the church filed a lawsuit seeking a preliminary injunction barring enforcement of the public accommodations laws against the church. The church’s lawsuit alleged five causes of action.

The church attached to its lawsuit a sermon one of its pastors had written titled “A Biblical View of Human Sexuality.” The pastor provided a statement declaring that he had drafted the sermon but had declined to deliver it due to his fear of exposing the church to liability for violating Iowa law.

The court agreed with the defendants (the state of Iowa and city of Des Moines) that the church’s request for a preliminary injunction had to be dismissed on the ground that it lacked “standing” to prosecute its claims in federal court.

Standing is a requirement of any federal case, and derives from Article III of the United States Constitution that limits the jurisdiction of the federal courts to “cases and controversies.” To meet the “case or controversy” requirement, a plaintiff must establish “standing to sue” by showing that (1) he or she has been injured, and the injury is real rather than speculative or hypothetical; (2) the injury was caused by some action by the defendant; and (3) the injury would be “redressed” if the court grants the plaintiff the relief requested. If these conditions are not met, the dispute is not a “case or controversy” and the court is without constitutional authority to resolve it.

Injury in fact—sermons
The court noted that an injury must be “concrete and particularized or actual and imminent, rather than conjectural or hypothetical,” and that the purpose of this requirement “is to ensure that the alleged injury is not too speculative for Article III purposes.” Allegations of possible future injury “are not sufficient.”

The church claimed that it had been injured because:

By refraining to post these statements, or deliver the sermon, the church alleged that it had “self-censored” its speech.

The court acknowledged that “self-censorship may amount to an injury for purposes of standing if the plaintiff has been objectively reasonably chilled from exercising his First Amendment right to free expression in order to avoid enforcement consequences.” But, the court cautioned that “a plaintiff suffers from an objectively reasonable chilling of his First Amendment right to free expression by a criminal statute only if there exists a credible threat of prosecution under that statute if the plaintiff actually engages in the prohibited expression” (emphasis added). And, in order for a plaintiff to face “a credible threat of prosecution,” the allegedly threatened course of conduct must be prohibited by the challenged statute. The court concluded:

In summary, the plaintiff lacked standing to challenge the constitutionality of applying the public accommodation laws’ nondiscrimination provisions to the content of sermons because sermons enjoy such broad and undisputed constitutional protection that it is inconceivable that the state or city would use these laws to punish churches based on the content of sermons. The court supported its conclusion by referring to a decision by the United States Supreme Court: “It is not within the competence of courts under our constitutional scheme to approve, disapprove, classify, regulate, or in any manner control sermons delivered at religious meetings,” and “sermons are as much a part of a religious service as prayers.” Fowler v. State of Rhode Island, 345 U.S. 67 (1953).

The court then turned its attention to the church’s restroom policy, which the church said it feared to publicize.

Injury in fact—posting the rest-room policy
The church argued that its decision not to post its restroom policy out of a fear of liability constituted additional injury satisfying the standing requirement. The court agreed:

Injury caused by the defendant
To have standing to sue in federal court, a plaintiff not only must demonstrate an actual as opposed to a hypothetical injury, but also must be able to demonstrate that the injury was caused by the defendant. The court concluded that this requirement was met since “its injury is fairly traceable to challenged actions of the defendants.”

Redressability
To have standing to sue in federal court a plaintiff must also demonstrate that its injury would be redressed by a favorable ruling by the court. Once again, the court concluded that this element was met, and therefore the church had standing to pursue its claims in federal court.

Having concluded that the church had standing to pursue its request for an injunction with regard to enforcement of the laws’ nondiscrimination provisions to the posting of its restroom policy, the court turned to the merits of the case. It began its analysis by observing that “a preliminary injunction is an extraordinary remedy never awarded as of right,” because it interferes with a defendant’s freedom of action. For the church to succeed in persuading a court to issue an injunction, it must establish a likelihood that it would succeed on the merits of the case in a court of law.

The church claimed that it would likely succeed in showing that the laws it was challenging are void under

Due Process Clause of the Fourteenth Amendment
The church claimed that the nondiscrimination provisions in the state and city public accommodations laws were void under the Due Process Clause on the basis of vagueness. The court conceded that a law is unconstitutionally vague if it “fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement.”

The church pointed to several provisions in the state and city public accommodations laws that it regarded as vague. First, the church claimed that “bona fide religious institution” and “bona fide religious purpose” are impermissibly vague. But the court did not believe that “religious institution” or “religious purpose” is so subjective “that a reasonable person would realistically be unable to determine their meanings.” Further, the court did not believe that the term “bona fide” when placed alongside these terms rendered them overly vague, since it was reasonably clear that these words “conveyed the legislature’s intent to limit the religious institution exemption to those organizations who are genuine in their religious beliefs or those who request the protection of the religious institution exemption in good faith. Hence, the terms ‘bona fide religious institution’ and ‘bona fide religious purpose’ are not so subjective as to lead to seriously discriminatory enforcement.”

The court similarly rejected the church’s contention that other terms in the public accommodations laws were so vague as to be unconstitutional. The court conceded that some of these terms “do seem to leave room for a certain amount of subjectivity.” However, “considering them together within the context of the laws in question—laws aimed at preventing discrimination—the provisions are not so standardless as to lead to seriously discriminatory enforcement.”

The court concluded that it was not likely that the church would prevail in court on its vagueness challenge under the Due Process Clause.

Free Speech claim
The church claimed that the nondiscrimination provisions in the public accommodations laws violated its constitutional right of free speech under the First Amendment. The court disagreed, noting that “the problem with the church’s … challenge is that there is a significant amount of uncertainty surrounding whether the antidiscrimination laws would ever be applied to its conduct.” The court continued:

The court noted that other courts that have addressed the issue have concluded that churches and programs they host are not places of public accommodation, citing the following cases:

The Iowa federal district court noted at a pretrial hearing that the state and city defendants stated that the church’s restroom policy was likely permitted under the antidiscrimination laws “because the policy is plainly drafted to serve a religious purpose and that all of the activities the church enumerated within its complaint also appeared to be religious in nature.” The court noted that “such acknowledgements do not prevent the state and city defendants from seeking enforcement against the church and so assigns these statements little weight. However, in light of the previous determinations, they seem to be one more indication that the outcome of the church’s claim is far from certain.”

The court concluded:

Free Exercise of Religion claim
Next, the court addressed whether the church was likely to succeed on its challenge to the constitutionality of the antidiscrimination laws on the basis of its right to freely exercise its religion. Under the Free Exercise Clause of the First Amendment, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

The court noted that “the Free Exercise Clause clearly protects a citizen’s right to his or her own religious beliefs. [It] means, first and foremost, the right to believe and profess whatever religious doctrine one desires.” However, “the Free Exercise Clause does not shield every act that may be infected with religiosity from government regulation.” The United States Supreme Court has noted that “we have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate.” And, significantly, “a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice.” In other words, the Free Exercise of Religion clause, as currently construed by the Supreme Court, recognizes “neutral laws of general applicability” as consistent with the Free Exercise Clause. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993).

The Iowa court concluded that the state and municipal public accommodations laws in this case were neutral toward religion, and of general applicability, and therefore consistent with the Free Exercise of Religion Clause of the First Amendment.

Establishment Clause claim
The plaintiffs also claimed that the public accommodation laws under consideration violated the First Amendment’s Establishment Clause, which states that “Congress shall make no law respecting an establishment of religion … .” The court failed to see how this clause was implicated or violated by the public accommodation laws in this case. Further, “the three main evils against which the Establishment Clause was intended to afford protection are sponsorship, financial support, and active involvement of the sovereign in religious activity,” none of which were implicated in this case.

As a result, the court concluded that the plaintiffs were “not likely to succeed on the merits of their challenges to the state and municipal antidiscrimination laws under either the Free Exercise Clause or the Establishment Clause,” or under the Constitution’s Free Speech or Due Process Clauses, and so their request for an injunction had to be denied.

Historically, a person’s gender was determined at birth. But in recent years, some have argued that their “gender identity” is different from their gender at birth. For example, while born a male, a person comes to identify with the female gender. Such persons are commonly referred to as “transsexuals.” Some of them have surgery or hormonal therapy to change some of their physical characteristics, but many do not.

In recent years, “gender identity” has emerged as a legally protected status, usually as a result of a nondiscrimination provision in a state or municipal public accommodations law. This has caused considerable confusion and concern for many church leaders, and has raised a number of ethical, theological, and legal issues. For example, is a church legally required to:

The answers to these questions are complicated by two factors. First, few courts have addressed these issues, and second, any answers will depend on the terms in a veritable patchwork quilt of hundreds of local, state, and federal laws forbidding discrimination by places of “public accommodation.”

The following analysis should enable church leaders to assess the potential application of the nondiscrimination provisions in a public accommodation law. Important questions to address are: