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Arizona’s nondiscrimination legislation may build on Utah’s example

Written by William C. Duncan

February 11, 2022

In a series of articles, Sutherland has laid out a vision for advancing religious freedom by reducing conflicts between religious practice and other important interests.

An example of this approach was legislation enacted by the Utah Legislature in 2015. These laws added the categories of sexual orientation and gender identity to the state’s laws prohibiting discrimination in housing and employment. It also included protections for individuals at risk of being punished for their religious beliefs about marriage and sexuality in employment and professional licenses or by government penalties. It ensured that religious groups and people of faith were protected in their use of facilities, provision of social services, or in officiating at weddings. At the same time, it ensured parallel protections for LGBT people in their workplace speech or comments outside of work hours.

A recent Deseret News story explains that the Arizona legislature is considering legislation to build on the example of Utah.

The Arizona bill adds the terms “sexual orientation” and “gender identity” to the state’s laws prohibiting discrimination in employment and housing practices and in public accommodations. It also clarifies the religious exemption in the discrimination law so that churches, nonprofit religious organizations, and religious schools will not be impacted by the changes. The bill specifies that it trumps any local ordinances at odds with the state policy.

There are some differences between this legislation and the Utah bills (Senate Bill 296 and Senate Bill 297) approved in 2015.

Perhaps most important is that the Arizona proposal deals with an issue Utah’s legislation did not – public accommodations. Most states prohibit discrimination in public accommodations, which means roughly that businesses that are open to the public cannot refuse service to potential customers based on a protected status, like race, sex or religion.

The reason this is significant is that the vast majority of conflicts between the practices of people of faith and religious organizations and principles of nondiscrimination on the basis of sexual orientation and gender identity arise in the context of public accommodations.

In this regard, the bill specifically exempts administrative offices of religious organizations, places of worship, and religious schools.

Second, the Arizona bill prohibits what it calls “conversion therapy” with clients younger than 18 years old. This is defined as “any practice of treatment that seeks to change the sexual orientation or gender identity of a patient or client, including mental health therapy that seeks to change, eliminate, or reduce behaviors, expressions, attractions or feelings related to the patient’s or client’s sexual orientation or gender identity.” This provision exempts clergy or religious counselors acting as such.

Third, the bill includes language establishing and clarifying an employer’s duty to accommodate religious practices of employees that do not interfere with the employee’s core responsibilities, such as religious dress or days of religious observance.

At this point, Arizona does not appear to be considering legislation similar to Utah’s SB 297, which provided a number of protections for religious groups, people of faith and LGBT people as described above.

It’s possible there will be additional efforts to modify the Arizona proposal, so we do not know what the final law will be if the bill is passed. It is positive, though, that the general approach of trying to minimize conflicts has guided the process thus far.

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