On Friday, Congressman Chris Stewart (R-Utah) and several of his Republican colleagues in the House of Representatives introduced the so-called “Fairness for All Act.” The bill is being described by its supporters as a compromise that protects both LGBTQ people and religious liberty.

In reality, the bill facilitates the Trump administration’s ongoing efforts to give a greenlight to those who would turn LGBTQ people away from jobs, health care, housing, even taxpayer-funded programs, simply because of who they are. The bill also weakens some longstanding protections in federal and state laws for everyone, not just LGBTQ people.

Creates a Different Standard for Anti-LGBTQ Discrimination

By singling out LGBTQ people for lesser protections than other characteristics under federal law – such as race, ethnicity, and religion – the new legislation signals that LGBTQ people are less worthy of protection. It does this by providing religious organizations and service providers with the ability to discriminate based on sexual orientation and gender identity where they are explicitly prohibited under current federal law from discriminating based on other protected characteristics.

Grants a License to Discriminate in Child Welfare

One of the most dangerous aspects of the new legislation is its proposal to upend the child welfare system to allow for sweeping taxpayer-funded discrimination. It would do this through the creation of a new voucher system whose sole purpose is to allow religiously-affiliated child welfare providers – with whom the government contracts with to find stable, loving homes for children who are in state care – to discriminate against LGBTQ people or those, such as Jewish parents or single parents, who do not meet the agency’s religious criteria.

In places where the only providers work exclusively with conservative Christians, children of minority faiths – such as those who are Muslim or Jewish – or those who are LGBTQ would only be placed with parents who would be free to refuse to respect the identities of the children in their care.

Undermines Existing Protections from the Courts

Within the next seven months, the Supreme Court is poised to rule in a trio of cases concerning the existing rights of LGBTQ people under federal law. This new bill would undermine a potentially favorable ruling in those cases by authorizing discrimination in many contexts where it would be prohibited under existing law.

Proponents of this bill claim that it will somehow result in less litigation. They claim that by allowing discrimination by people of faith in many contexts, it will somehow end court fights over whether people of faith have a right to discriminate against LGBTQ people generally. But the opposite is true. The bill would lead to more litigation by providing less clarity about the balance Congress first struck between religious liberty and nondiscrimination protections a half century ago in the Civil Rights Act of 1964. The courts have spent the past 65 years interpreting that balance and implementing existing law and this proposal would upend that carefully developed body of law in the service of expanding discrimination against LGBTQ people.

And it would also exclude people seeking reproductive health care from protections against sex discrimination, undermining and stigmatizing access to care that is constitutionally protected.

We Aren’t Finished Until we are all Protected

We need legislation that provides LGBTQ people with comprehensive, nationwide nondiscrimination protections and closes gaps in our civil rights laws for everyone. Earlier this year, the House of Representatives did exactly that – on a bipartisan basis – when it passed the Equality Act. It is now time for the Senate to act.

The vast majority of Americans – from across the political spectrum and a wide range of religious beliefs and backgrounds – believe that it is both wrong to discriminate against LGBTQ people and that our nation’s civil rights laws should protect people from discrimination on the basis of sexual orientation and gender identity. LGBTQ people deserve nothing less. The Equality Act is the only bill which meets that standard.

Ian S. Thompson, ACLU Washington Legislative Office

This year was another of devastating attacks on immigrants’ rights by the Trump administration. However, in both red and blue states, we fought and won new measures that stymie Trump’s deportation machine. These local wins, though often overshadowed by the president’s xenophobia, are powerful. Here are some of the most surprising and significant of our 2019 immigrant justice victories in the states.

In Michigan, a former marine’s arrest prompts police reform

Grand Rapids, Michigan police kept veteran and U.S. citizen Jilmar Ramos-Gomez in immigration detention for 3 days — even though he was carrying his U.S. passport when he was arrested. The stunning case prompted a public outcry. Following advocacy by the ACLU of Michigan, the Grand Rapids Police Department issued a new policy prohibiting police stops and interrogations based solely on suspected violations of immigration law; and the Kent County Sheriff issued a new policy requiring a judicial warrant for all Immigration and Customs Enforcement detainees.

A landmark 60 Massachusetts localities have opted out of ICE collaboration

Years into an effort to end the entanglement of state and local police collaboration with ICE, the number of Massachusetts towns and counties opting out of ICE collaboration has reached 60. The latest: In November, the rural community of Greenfield — home to many undocumented farm workers —overrode the mayor’s veto to pass a Safe City ordinance. This policy stops police from asking about immigration status and prohibits giving ICE information about people in local custody. Shortly after the decisive victory, opponents tried to repeal the ordinance through a ballot initiative, but the ACLU of Massachusetts worked with a broad coalition on the ground to defeat it.

New Jersey makes statewide advances on immigrant justice

The New Jersey Attorney General issued a major directive: New Jersey’s counties can no longer participate in 287(g) agreements, which allow ICE to deputize local law enforcement as federal immigration officers. These agreements have a record of contributing to racial profiling and the harassment of immigrant communities. Additionally, the state legislature approved a 50 percent increase in funding for free legal counsel to people detained in New Jersey who face potential deportation. Finally, the governor signed a bill severely restricting the use of solitary confinement in state prisons and county jails, including those that detain immigrants.

Las Vegas and Nashville sheriffs end anti-immigrant agreements

The Las Vegas, Nevada police department withdrew from its 287(g) agreement with ICE and announced it will end its practice of honoring ICE detainers, prompted by the ACLU of Nevada and several groups. The sheriff in Nashville, Tennessee ended a rent-a-bed program that allowed ICE to use the local jail for immigration detention.

New York and Oregon make driver’s licenses accessible to all

Across the country, hundreds of thousands of undocumented people struggle to get to work and take their children to school because they don’t have access to driver’s licenses. Driving without a license can lead to their arrest, detention, and deportation. Expanding access to driver’s licenses to all eligible individuals regardless of immigration status is good for public safety because it ensures more people on our roads are tested, trained, and qualified. New York passed a driver’s licenses for all bill in June and Oregon did so in July. Now there are a total of 14 states making driver’s licenses eligible to residents regardless of immigration status, plus D.C. and Puerto Rico.

Nebraska school districts agree to anti-discrimination measures

Following an ACLU of Nebraska report on barriers to immigrant and refugee kids registering and enrolling in school, major school districts in Omaha, Norfolk, and Crete agreed to make changes. The state’s Department of Education is beginning to develop new regulations in response to the report.

Utah, Colorado, and New York pass laws to protect non-citizens from deportation

This spring, Utah became one of the few Republican-led states to pass a so-called 364-day law. Colorado and New York passed similar bills. These measures reduce the maximum jail sentence for misdemeanor offenses by one day, from 365 to 364 days, protecting immigrants from serious consequences imposed by federal immigration law that kick in at 365 days or more — even if the person’s actual sentence is just a few days. Those consequences include detention, deportation, and loss of opportunity for individuals to adjust their immigration status. These reform measures ensure that convictions for minor offenses like shoplifting don’t carry devastating consequences.

There are a lot more wins, including major reform legislation in California, Illinois, and Washington.

The threat to immigrants’ rights is far from over. Still, we can expect that states will continue to take action as public opinion evolves on immigrants’ rights. Six in 10 Americans now oppose the Trump administration’s agenda of deporting immigrants without lawful status. In 2019, state and local officials got the message: Our communities must and will fight back.

Naureen Shah, Senior Advocacy and Policy Counsel, ACLU

The Senate this week held a hearing examining the first comprehensive privacy proposals to come from the leaders of the Senate Committee on Commerce, Science, and Transportation. The bills are likely to set the tone for much-anticipated final legislation safeguarding our privacy rights online.

Neither bill is perfect. But the Consumer Privacy Online Rights Act — introduced by Sen. Maria Cantwell, D-Wash. — offers a strong first step. The bill from Sen. Roger Wicker, R-Miss., the U.S. Consumer Data Privacy Act of 2019, has several glaring deficiencies and should not move forward without significant improvement. 

Here’s how the two bills stack up on key issues: 

Preserving State-Level Privacy Protections

Sen. Cantwell’s bill preserves the rights of states to pass stronger privacy laws. States have often led the work to protect consumer privacy. While Congress has yet to act, California has passed comprehensive privacy legislation, Illinois has taken steps to safeguard our face and other biometric information, and Maine has limited how internet service providers can collect and use our information. Recognizing the important role states play in protecting our privacy, Sen. Cantwell’s bill makes clear that federal privacy legislation must serve as a floor — not a ceiling — leaving states free to pass laws that provide stronger protections.

By contrast, Sen. Wicker’s draft legislation would completely gut existing state privacy laws and prevent states from passing stronger laws in the future. Companies could use the legislation — if it were to become law — in efforts to gut existing state privacy laws, like the California law, and stop states from putting in place more stringent privacy protections. This would negatively impact states’ ability to protect the privacy rights of their residents. 

Strong Enforcement Mechanisms

As recent settlements with the Federal Trade Commission have demonstrated, federal fines for privacy-violating companies are often simply viewed as the cost of doing business, not a call to change harmful practices. To make privacy protections meaningful, consumers should be able to sue those companies for damages, and the FTC should have the authority to levy civil penalties and to set strong privacy rules.

Sen. Cantwell’s bill offers a strong approach. In addition to beefing up the authorities and resources of the Federal Trade Commission, the bill allows private citizens to sue companies who violate their privacy rights. Recognizing the difficulty in quantifying the cost of a privacy harm, the bill specifies the damages available to individuals per violation, and allows for the award of punitive damages, as appropriate. 

Sen. Wicker’s bill provides no such right. Instead, the bill leaves enforcement entirely to state attorneys general and the FTC, though the latter has increased authorities. This is simply not enough and is likely to lead to significantly weak enforcement, stranding people who have been harmed with no recourse.

Preventing Online Discrimination

It’s imperative that Congress act to stop discrimination from taking on new life in the 21st century. To that end, Sen. Cantwell’s bill includes provisions that would prohibit the use of data to discriminate in housing, employment, credit, education, or public accommodations, and permits the FTC to enforce the prohibition. In addition, the bill would require data operators to conduct impact assessments to measure potential discrimination stemming from their use of an algorithm. As the bill advances, these provisions should be improved to provide other agencies, like the Consumer Financial Protection Bureau and Department of Housing and Urban Development, the ability to monitor and take enforcement action against companies that violate these provisions. 

Sen. Wicker’s bill positively acknowledges that companies’ use of data to discriminate in ways that violate existing anti-discrimination laws is a problem that needs to be addressed. It requires some operators to conduct impact assessments and stipulates that the FTC may refer cases of discrimination to the appropriate state and federal agencies, an authority that the FTC already has in many contexts. This, falls far short of what is needed to prevent discrimination in the online ecosystem and is inferior to the approach in Sen. Cantwell’s bill.

Clear and Strong Data Usage Rules

Consumers should have control over their data. To that end, both bills prohibit companies from sharing data without an explicit opt-in for sensitive data, or opt-out for other types of data. Both also give consumers the right to access, correct, and request the deletion of their information. Sen. Cantwell’s bill would even prohibit companies from denying services or charging someone more if they choose to exercise their privacy rights.

The two bills, however, make an artificial distinction between sensitive and non-sensitive data, with the former afforded greater privacy protections. Personal data is personal, which means the value ascribed to certain data varies by individual. For one person, information about their race may be deeply sensitive. For another, this information may already be widely available, yet information about their reading or buying habits may be more personally revealing. Privacy legislation should afford a high level of protection to all information without distinction.

We encourage members of Congress to continue working together to enact legislation that protects our data, preserves state laws that provide greater protections, and gives people the ability to enforce their privacy rights. Consumers are counting on it to take action to protect their data.

Neema Singh Guliani, ACLU Senior Legislative Counsel
& Kate Ruane, Senior Legislative Counsel, ACLU