On Wednesday, 42 Republican members of Congress joined the Democrats to vote for President Barack Obama’s transgender agenda. Now they’re trying to spin their vote.

These 42 Republicans voted for the Maloney amendment, which ratified Obama’s 2014 executive order barring private businesses who do contract work for the government from engaging in what the government considers to be “discrimination” on the basis of “sexual orientation and gender identity” in their private employment policies. (One member of Congress said he accidentally voted for the Maloney amendment.)

As I pointed out in an earlier Daily Signal article, “discrimination” on the basis of “gender identity” can be something as simple as having a bathroom policy based on biological sex, not gender identity.

New York City is now fining people up to $250,000 for “gender identity” “discrimination” if they use the wrong pronoun. Meanwhile, “discrimination” on the basis of “sexual orientation” can be something as reasonable as an adoption agency preferring married moms and dads for orphans, than other arrangements.

Congress should not be ratifying Obama’s radical transgender agenda and imposing these outcomes on private employers just because they contract with the government. All Americans should be free to contract with the government without penalty because of their reasonable beliefs about contentious issues. The federal government should not use government contracting to reshape civil society about controversial issues that have nothing to do with the federal contract at stake.

Those supporting the Maloney amendment and Obama’s transgender agenda have created some rather novel arguments in their defense. Here are some, along with my responses.

Claim: The Maloney amendment simply affirms existing law. Companies that do work for the federal government must apply the same hiring practices as the federal government.

Reality: The Maloney amendment ratifies Obama’s executive order and codifies it in law through each appropriations bill it is attached to. The appropriate response to Obama’s executive order, as I argued two years ago, is for Congress to reject the order, not ratify it in law.

There is no good reason why 42 Republican members of Congress should be working with the Obama administration to force private businesses that do contract work for the government to embrace the government’s radical transgender agenda. Nothing in the Constitution requires this.

Claim: The Maloney amendment applies only to federal agencies. It is not about gender identity policy for the public at large.

Reality: The Maloney amendment applies to private businesses that do contract work for the government, not to federal agencies only.

The Maloney amendment applies “gender identity” policies to all of those private businesses—and it establishes a precedent to extend them beyond businesses that do contract work for the government to all businesses.

Claim: What’s the big deal? Pre-existing religious liberty protections will take care of the problems with the Maloney amendment.

Reality: The Maloney amendment creates bad public policy. Maloney says that acting on the belief that we’re created male and female, and that male and female are created for each other, now equals “discrimination.” Yes, existing religious liberty protections may provide some protection. But they do not adequately protect against the damage of Maloney, because there is no way to sufficiently protect liberty if government elevates “sexual orientation and gender identity” to a special legal status, as Princeton University professor Robert P. George and I explain.

Furthermore, religious liberty protections provide no protection for non-religious concerns about privacy and safety and transgender bathroom policies. Secular contractors can have concerns about Obama’s radical transgender agenda, too, and they have no protection.

This sort of argument—“we created bad policy, but hey, there are existing religious liberty protections”—is akin to what the Obama administration said with the Obamacare Department of Health and Human Services contraception mandate. Anyone who has seen how that has played out for the Little Sisters of the Poor can see how the Maloney amendment and other “sexual orientation and gender identity” policies will play out.

Liberal activist judges will do all they can to ensure that sexual orientation and gender identity policies will trump religious liberty protections, and trump concerns for privacy and safety. This is why Congress should not be elevating sexual orientation and gender identity as a protected class garnering special legal privileges.

Here is a list of the 42 Republicans who voted for the amendment:

  • Justin Amash, Mich.
  • Susan Brooks, Ind.
  • Mike Coffman, Colo.
  • Ryan Costello, Pa.
  • Carlos Curbelo, Fla.
  • Rodney Davis, Ill.
  • Jeff Denham, Calif.
  • Charlie Dent, Pa.
  • Mario Diaz-Balart, Fla.
  • Bob Dold, Ill.
  • Daniel Donovan, N.Y.
  • Tom Emmer, Minn.
  • Michael Fitzpatrick, Pa.
  • Rodney Frelinghuysen, N.J.
  • Chris Gibson, N.Y.
  • Joe Heck, Nev.
  • Will Hurd, Texas
  • Darrell Issa, Calif.
  • David Jolly, Fla.
  • John Katko, N.Y.
  • Adam Kinzinger, Ill.
  • Leonard Lance, N.J.
  • Frank LoBiondo, N.J.
  • Tom MacArthur, N.J.
  • Martha McSally, Ariz.
  • Pat Meehan, Pa.
  • Luke Messer, Ind.
  • Erik Paulsen, Minn.
  • Bruce Poliquin, Maine
  • Tom Reed, N.Y.
  • David Reichert, Wash.
  • Jim Renacci, Ohio
  • Tom Rooney, Fla.
  • Ileana Ros-Lehtinen, Fla.
  • Elise Stefanik, N.Y.
  • Fred Upton, Mich.
  • David Valadao, Calif.
  • Greg Walden, Ore.
  • Mimi Walters, Calif.
  • David Young, Iowa
  • Todd Young, Ind.
  • Lee Zeldin, N.Y.

Update: Rep. John Shimkus, R-Ill., issued a statement Thursday saying his vote Wednesday was “recorded incorrectly,” per his press release.

My position on this issue has not and will not change,” Shimkus said in a statement. “I’ve consistently defended religious liberty and I always will. During a series of 14 votes on the House floor, I accidentally cast a ‘yea’ vote for the Maloney Amendment when I intended to vote ‘nay.’ I regret the mistake.