Sexual
Orientation and Gender Identity (SOGI) Laws Threaten Freedom, by Ryan T. Anderson, Ph.D., Senior Research Fellow in
American Principles and Public Policy
researches
and writes about marriage, bioethics, religious liberty and political
philosophy.11/30/15
America is dedicated to protecting
the freedoms guaranteed under the First Amendment to the Constitution, while
respecting citizens’ equality before the law. None of these freedoms is
absolute. Compelling governmental interests can at times trump fundamental
civil liberties, but sexual orientation and gender identity (SOGI) laws do not
pass this test.
Rather, they trample First Amendment
rights and unnecessarily impinge on citizens’ right to run their local schools,
charities, and businesses in ways consistent with their values. SOGI laws do
not protect equality before the law; instead, they grant special privileges
that are enforceable against private actors.
SOGI laws could also have serious
unintended consequences. These laws tend to be vague and overly broad, lacking
clear definitions of what discrimination on the basis of “sexual orientation”
and “gender identity” mean and what conduct can and cannot be penalized. These
laws would impose ruinous liability on innocent citizens for alleged
“discrimination” based on subjective and unverifiable identities, not on
objective traits.
SOGI laws would further increase
government interference in markets, potentially discouraging economic growth
and job creation. With regard to “gender identity” and “transgender” teachers,
students, and employees, SOGI laws could require education and employment
policies concerning schoolhouse, locker room, and workplace conditions that undermine
common sense.
SOGI laws threaten the freedom of
citizens, individually and in associations, to affirm their religious or moral
convictions—convictions such as that marriage is the union of one man and one
woman or that maleness and femaleness are objective biological realities to be
valued and affirmed, not rejected or altered. Under SOGI laws, acting on these
beliefs in a commercial or educational context could be actionable
discrimination. These are the laws that have been used to penalize bakers,
florists, photographers, schools, and adoption agencies when they declined to
act against their convictions concerning marriage and sexuality.[1] They
do not adequately protect religious liberty or freedom of speech.
In short, SOGI laws seek to regulate
decisions that are best handled by private actors without government
interference. SOGI laws disregard the conscience and liberty of people of good
will who happen not to share the government’s opinions about issues of marriage
and sexuality based on a reasonable worldview, moral code, or religious faith.
Accordingly, these laws risk becoming sources of social tension rather than
unity.
Of course, business owners should
respect the intrinsic dignity of all of their employees and customers, but SOGI
laws are bad public policy. Their threats to our freedoms unite civil
libertarians concerned about free speech and religious liberty, free-market
proponents concerned about freedom of contract and governmental overregulation,
and social conservatives concerned about marriage and culture.
What SOGI Laws Do
Activist groups such as the Human
Rights Campaign (HRC)—an influential, sophisticated, and lavishly funded LGBT[2]-activist
organization—are pushing SOGI laws on unsuspecting citizens at the federal,
state, and local levels. In 2015, HRC launched its Beyond Marriage Equality
initiative.[3] The
centerpiece of the initiative is the Equality Act, a piece of federal
legislation.[4]
The Equality Act would add “sexual orientation”
and “gender identity” to more or less every federal civil rights law that
protects on the basis of race, expanding them beyond their current reach and
explicitly reducing current religious liberty protections.[5]
The Equality Act goes well beyond
the proposed Employment Non-Discrimination Act (ENDA), which would have added
SOGI only to employment law. When it was first introduced in 1994, ENDA
included only “sexual orientation,” but “gender identity” was added to the bill
in 2007. Each and every Congress has defeated ENDA since its introduction.
Nevertheless its proponents have moved well beyond its original bounds of
employment to now include “Public Accommodations, Education, Federal Financial
Assistance, Employment, Housing, Credit, and Federal Jury Service.”[6]
The Equality Act would significantly
amend and expand the definition of “public accommodations” in the Civil Rights
Act of 1964. Indeed, a fact sheet on the Equality Act produced by Senators Jeff
Merkley (D–OR), Tammy Baldwin (D–WI), and Cory Booker (D–NJ) notes that the act
“expands the types of public accommodations receiving federal protection to
cover nearly every entity that
provides goods, services, or programs.”[7] Whereas
the Civil Rights Act of 1964—which sought to combat institutionalized
state-endorsed racism and integrate the South—defined public accommodations as
entities such as hotels, restaurants, theaters, and gas stations, the Equality
Act would define more or less every private business that is
open to the public as a place of “public accommodation.”
The Equality Act is not alone in
this. In 2014, the Houston City Council passed a SOGI law, which was dubbed the
Houston Equal Rights Ordinance (HERO). In November 2015, the citizens of
Houston voted to reject HERO—for good reasons. The law stated: “Place of public accommodation means
every business with a physical location in the city, whether wholesale or
retail, which is open to the general public and offers for compensation any
product, service, or facility.”[8] Every
business in the city open to the public would have been subject to this law.
Yet neither HERO nor SOGI laws in other jurisdictions clearly define what
actions count as discrimination on the basis of sexual orientation or gender
identity.
SOGI laws vary from jurisdiction to
jurisdiction, but common features are that they leave unclarified what actions
could be considered discriminatory, and they use expansive definitions of
public accommodations, with many also applying to education, employment,
housing, and banking, among others.
SOGI laws do have clear implications
for bathrooms, locker rooms, and other sex-specific facilities. The Equality
Act is intended, according to its co-sponsors, to “clarify that where
sex-segregated facilities exist, individuals must be admitted in accordance
with their gender identity.”[9]
However, gender identity is an
entirely subjective self-declaration. The Equality Act states: “The term
‘gender identity’ means the gender-related identity, appearance, mannerisms, or
other gender-related characteristics of an individual, regardless of the
individual’s designated sex at birth.”[10] The
Houston law defined gender identity as “innate identification, appearance,
expression, or behavior as either male or female, although the same may not
correspond to the individual’s body or gender assigned at birth.”[11] No
legal change of name or gender (and no surgery or hormone treatment) is
required to identify as transgender—simply one’s self-professed and chosen
identity, appearance, mannerisms, and behavior.
What does this mean? In May 2015,
the school board of Fairfax County, Virginia, voted to add “gender identity” to
its list of protected classes against overwhelming opposition from parents at
the school board meeting.[12] The
Washington Times explains the likely effect of the policy: “The
amended policy could allow male students who identify as female to use girls’
bathrooms and locker rooms, among other changes.”[13]
How do these laws come about? The Washington
Post reported on one of the driving forces behind the decision: new
policy created by federal agencies: “In April 2014, the U.S. Education
Department’s Office for Civil Rights released updated guidelines to the 1972
Title IX civil rights law highlighting that the nondiscrimination clause
‘extends to claims of discrimination based on gender identity or failure to
conform to stereotypical notions of masculinity or femininity.’”[14] Because
a federal agency unilaterally reinterpreted a 1972 law, local school boards
were coming under fire. Indeed, the Post reports that “where
schools are found to have failed to comply with Title IX, the Education
Department may terminate federal funding. The Fairfax school system receives
$42 million…[annually] from the federal government.”[15]
Indeed, the federal pressure was not
unique to Fairfax County. In November 2015, the Department of Education’s
Office for Civil Rights sent a letter to an Illinois high school district
accusing the district of violating Title IX because of its policies regarding
transgender students.[16] At
issue is the school’s decision to allow a male student that identifies and
dresses as a girl to use bathrooms with private single-stalls, but not to allow
him into the girls locker rooms unless he changes behind a curtain out of
respect for the privacy concerns of the surrounding students.[17] The
federal government attacked this compromise solution. As the Chicago
Tribune reports, as a result of the federal government intervention,
“The district has 30 days to reach an agreement with authorities or risk having
their federal educational funding suspended or even terminated.”[18] Because
the district wants to protect the privacy of all students, it risks losing
federal educational funding.
The problems with SOGI laws extend
beyond privacy concerns. SOGI laws do not adequately protect religious freedom.
Indeed, some explicitly provide no protections for religious
liberty. For example, the Equality Act removed the meager religious liberty
protections that had existed in ENDA. It now contains no protections for
religious belief or conduct. Even worse, the Equality Act states that the
federal Religious Freedom Restoration Act cannot be used to defend people who
believe that marriage is the union of man and woman if they are incorrectly
charged with “discrimination” under the Equality Act. The bill says that
religious freedom needs to take a back seat to special SOGI protections.
Americans should respect the equal
dignity of their neighbors, but SOGI laws do not protect true equality before
the law. For example, when the city council of Fayetteville, Arkansas, adopted
a SOGI ordinance, informed citizens raised concerns about its intended and
unintended consequences, including the abridgement of religious liberty and
disturbing policies governing transgender persons’ access to restrooms. One
organizer of the successful campaign to overrule the ordinance explained what
was at stake:
It was called the Civil Rights
Ordinance, but it was misnamed. It was an ordinance that actually took away
civil rights and freedom from people. It criminalized civil behavior. It didn’t
accomplish the stated purpose of the ordinance, and it was crafted by an
outside group. It wasn’t something Fayetteville residents put together.[19]
The reasons why SOGI laws are bad
public policy are becoming clear.
SOGI Laws Create Unnecessary Problems
SOGI laws can have serious
unintended consequences. They threaten small-business owners with liability for
alleged “discrimination” based on subjective and unverifiable identities, not
on objective traits. They expand state interference in labor markets,
potentially discouraging economic growth and job creation. They endanger
religious liberty and freedom of speech, and they mandate education and
employment policies that undermine common sense in the schoolhouse and the
workplace. In short, SOGI laws regulate commercial decisions that are best
handled by private actors, and they regulate educational decisions best handled
by parents and teachers, not bureaucrats.
Establishing special privileges
based on gender identity is an especially bad idea. Prohibiting schools,
businesses, and charities from making decisions about transgender students,
faculty, and employees—particularly regarding those in positions of role
models—could be confusing to children and detrimental to workplace morale.
First, while issues of sex and gender identity are
psychologically, morally, and politically controversial, all should agree that
children should be protected from having to sort through such questions before
they reach an appropriate age as determined by their parents. SOGI laws would
prevent schools, parents, and employers from protecting children from these
adult debates about sex and gender identity by forcing employers, including
schools, to yield to the desires of transgender employees in ways that put them
in the spotlight.
Second, while some SOGI laws provide limited (and inadequate)
exemptions for religious education, they provide no protection for students in
public schools. These children would be prematurely exposed to questions about
sex and gender if, for example, a male teacher returned to school identifying
as a woman. Difficulties can also arise when a student identifies as
transgender and seeks to use the restrooms and locker rooms that correspond to
his or her new gender identity. These situations are best handled at the local
level, by the parents and teachers closest to the children.
Finally, whatever the significance of gender identity, society
cannot deny the relevance of biological sex in many contexts. For example, an
employer or gym owner would be negligent to ignore the privacy or safety
concerns of female employees or customers about having to share a bathroom or
changing room with people who are biologically male, whether or not they
“identify” as female. The same is true for students in bathrooms and locker
rooms. The implications for the privacy and safety rights of adults and
children are extremely serious, and state laws are already stirring up such
concerns. Writing about the proposed federal
Employment Non-Discrimination Act,
Hans Bader, a scholar with the Competitive Enterprise Institute, warns: ENDA
also contains “transgender rights” provisions that ban discrimination based on
“gender identity.” Similar prohibitions in state laws created legal headaches
for some businesses. One case pitted a transgender employee with male DNA who
sued after being denied permission to use the ladies’ restroom, a denial that
resulted from complaints filed by female employees. The employer lost in the
Minnesota Court of Appeals, but then prevailed in the Minnesota Supreme Court.
Another case involved a male-looking person who sued and obtained a substantial
settlement after being ejected from the ladies’ room in response to complaints
by a female customer who thought that a man had just invaded the ladies’ room.[20]
SOGI laws have also mandated
government discrimination against adoption agencies in Massachusetts, Illinois,
and the District of Columbia. Catholic Charities of Boston was forced to end
its foster care and adoption programs because it refused to abandon Catholic
teaching and place children with same-sex couples. Similarly, the District of
Columbia’s sexual orientation policy compelled Catholic Charities in the
District to shut down its foster care and adoption program in 2011 after 80
years of service. Likewise, because the Evangelical Child and Family Agency
(EFCA) believes that children should have the care of a married mother and
father, the state of Illinois under its sexual orientation policy refused to
renew the EFCA’s foster care contract, effectively forcing them to end their
foster care program.[21]
Private businesses have also been
the targets of government discrimination as a result of sexual orientation law.
The Oregon Bureau of Labor and Industries fined a small family bakery $135,000
because the family members’ Christian beliefs prohibited them from baking a
wedding cake celebrating a same-sex marriage. Due to Washington state sexual
orientation laws, 70-year-old Baronelle Stutzman, who owns Arlene’s Flowers, still
faces government seizure of her property because she politely refused to
provide flowers for a same-sex wedding ceremony based on her religious beliefs.
The owners of Elane Photography in New Mexico were ordered to pay more than
$6,000 in fines because they declined to photograph a same-sex commitment
ceremony, even though other photographers in the area were more than happy to
photograph the ceremony.[22]
SOGI Laws Infringe on Freedoms of
Contract, Speech, and Religion
A fundamental principle of American
labor law is the doctrine of “at will” employment, which leaves employers free
to dismiss employees at any time. In many other countries, a thicket of laws
and regulations makes it extremely difficult to terminate a contract with an
employee. Because businesses do not want to be stuck with unproductive or
superfluous workers, they are less willing to take the risk of hiring new
employees in jurisdictions with such laws.
Studies find that government
restrictions on layoffs seriously restrict hiring and job creation. For
example, in France, where the most severe government prohibitions on layoffs
apply to businesses with 50 or more employees, one recent study found that more
than twice as many French manufacturers have 49 employees as have 50 workers.[23] French
businesses seem to curtail hiring to avoid being stuck with poor performers.
SOGI laws chip away at the at-will
employment doctrine that has made the American labor market so much stronger
than European labor markets. The subjective nature of sexual orientation and
gender identity magnifies these problems by encouraging employees to threaten a
lawsuit against their employer in response to adverse employment decisions.
Hans Bader points out, “Since
American business seldom discriminates based on sexual orientation, the
potential benefits of ENDA are limited, at best. But ENDA would impose real and
substantial costs on business, and it could trigger conflicts with free speech
and religious freedom.”[24]
The threats to speech and religion
are serious. Bader notes that the Supreme Court found that Title VII of the
Civil Rights Act of 1964 “require[s] employers to prohibit employee speech or
conduct that creates a ‘hostile or offensive work environment’ for women,
blacks, or religious minorities.”[25] Employers
may be liable for damages and attorney’s fees if they are negligent in failing
to notice, stop, or discipline employees whose speech or conduct creates such
an environment.
SOGI laws create new problems with
respect to hostile work environment claims because they extend these
restrictions to “actual and perceived sexual orientation or gender identity.”
In practice, this means employers who express disapproving religious or
political views of same-sex marriage or tolerate employees who do could incur
enormous legal liabilities. Such potential liability could cause employers to
self-censor their speech and develop policies to prevent employees from
expressing views such as support for marriage as a union of one man and one
woman.
Bader, who supports same-sex
marriage, warns of the potential violations of liberty that ENDA threatens for
those who hold other views:
If ENDA were enacted, such liability
would also cover “sexual orientation”–based hostile work environments…. Thus,
to avoid liability, an employer might have to silence employees with political
opinions that are perceived as anti-gay, and prevent such employees from
expressing political views such as opposition to gay marriage or gays in the
military that could contribute to a “hostile work environment.”… While I have
supported gay marriage and the inclusion of gays in the military, I do not
think employers should be sued because their employees express contrary views….
[S]ome courts have interpreted “disparate treatment” to include speech or
conduct by the complainant’s co-workers that affects the complainant’s work
environment, even when the speech is not aimed at the complainant, and is not
motivated by the complainant’s sex or minority status.…
The possibility that ENDA will be
used to silence speech about gay issues is very real. Indeed, some supporters
of ENDA openly hope to use it to squelch viewpoints that offend them.[26]
In states with SOGI laws employers
have already started censoring their employees.[27] Regina
Redford and Robin Christy, two employees of the City of Oakland, California,
responded to the formation of an association of gay and lesbian employees by
forming the Good News Employee Association, which they promoted with flyers
that read, “Good News Employee Association is a forum for people of Faith to
express their views on the contemporary issues of the day. With respect for the
Natural Family, Marriage and Family values.” These flyers contained no
reference to homosexuality, but their supervisors ordered the flyers removed,
announced in an e-mail that they contained “statements of a homophobic nature
and were determined to promote sexual orientation-based harassment,” and warned
that anyone posting such materials could face “discipline up to and including
termination.”[28]
State SOGI laws have also chilled
employer speech. Seattle’s Human Rights Commission brought charges against
Bryan Griggs for playing Christian radio stations (on which he advertised) in
his place of work and posting a letter from his congresswoman expressing
reservations about gays in the military, when a self-identified gay employee
complained of a hostile work environment. Griggs had to spend thousands of
dollars on legal fees before the plaintiff dropped the charges, saying he had
made his point.[29] State
SOGI laws have also been used to violate the religious freedom of wedding
professionals and religious charities, as noted above.
SOGI laws imperil economic freedom,
privacy, child welfare, and religious liberty, creating more problems than they
aim to resolve. They are a solution in search of a problem. Instead of
government regulation and coercion, we should embrace the best of the American
tradition: liberty under law.
A Presumption of Freedom
The foundational principle of
American life is liberty under law. In general, consenting adults are free to
enter or refuse to enter relationships of every sort—personal, civic,
commercial, romantic—without government interference. Freedom of association
and contract are presumed. If the government decides to interfere, it must
explain why. It has the burden of proof.
The U.S. Constitution has
traditionally protected such fundamental civil liberties as freedom of religion,
speech, association, and contract as well as the right to own property. The
recognition of these civil liberties leaves everyone equal before the law.
These rights of association and
contract mean that businesses, charities, and civic associations should be
generally free to operate by their own values. They should be free to choose
their employees and their customers, the products and services that they
produce or sell, the terms of employment, and the standards of conduct for
members. They should be free to advance their own values and to live them out
as they see fit. In the United States, after all, it is perfectly legal for an
employer to fire an employee for all kinds of reasons—reasons someone else may
find compelling, trivial, or deplorable. Of course, some people and groups can
and do exercise their freedoms in ways that others may disapprove. But in this
country we tolerate such differences for the sake of the benefits of
liberty—creativity, innovation, reform, economic vitality, and the like.
Disagreement with someone’s actions
is not enough to justify the government coercing him into conformity with
prevailing opinion. Free association and exchange are usually sufficient to
sort these things out without the costs of government interference. Any
business in the United States that posted a “no gays allowed” sign would soon
find the power of public opinion expressed in the marketplace intolerably
costly, without any need for the government to weigh in.
In short, any law that would
establish special privileges based on a given trait has a high bar to clear.
For one thing, it should be hard to imagine any legitimate decisions
based on the trait. Otherwise, the cost of the law—sacrificing legitimate
liberty—outweighs its benefit. Furthermore, the purported injustice targeted by
the law must be resistant to market forces to justify government intervention,
with all of its unintended costs. Some people now claim that laws that create
special privileges based on SOGI clear this high bar. They are mistaken.
Freedom and Competition Work Better
Market competition can provide more
nuanced solutions for particular situations that are superior to a coercive,
one-size-fits-all government policy on sexual orientation and gender identity.
Individual schools should be free to develop individualized policies to address
the needs of their students, parents, and teachers. The same is true for
businesses. Having various employers who hold a wide variety of religious
beliefs or moral commitments makes it more likely that employees can find a
good fit while limiting the chance of discrimination. After all, employers
compete with each other for the best employees. They have incentives to
consider only those factors that truly matter for their mission. And businesses
compete with each other for customers, so they have every reason to accept
business unless it really does conflict with their deepest commitments.
Those who base their business
decisions on moral and religious views may well pay a price in the market,
perhaps losing customers and qualified employees and perhaps gaining others. If
the losses consistently outweigh the gains, they may be forced out of the
business altogether. But this natural process of equilibration only weakens the
case for costly government intervention. Bader reports that the liberal Center
for American Progress admitted that market forces are already at work in this
area: “Businesses that discriminate based on a host of job-irrelevant
characteristics, including sexual orientation…put themselves at a competitive
disadvantage compared to businesses that evaluate individuals based solely on
their qualifications and capacity to contribute.”[30] Decisions
as to what is “job-relevant” should generally be left to employers and the
market.
Many companies have voluntarily
adopted their own SOGI policies. The Human Rights Campaign reports that 89
percent of Fortune 500 companies already do not consider sexual orientation in
employment decisions.[31] Moreover,
“[m]edian LGBT household income is $61,500 vs. $50,000 for the average American
household,” according to Prudential.[32] It
is hard to justify a federal law that would interfere in employment decisions
to create special privileges based on sexual orientation and gender identity
when the market is already sorting these things out.[33]
The Analogy to Race
Advocates of SOGI laws, however, say
that they are just like racial antidiscrimination laws. Indeed, the refrain
from SOGI advocates for the past decade has been that laws designating marriage
as the union of male and female are no more defensible than bans on interracial
marriage. Some argue further that laws protecting the freedom of conscience
with respect to sexual morality are indistinguishable from the laws that
enforced race-based segregation. These arguments are wrong on several counts.
Even after the Supreme Court’s
judicial redefinition of marriage effectively deemed the sexes interchangeable,
government has no compelling interest in forcing every citizen to affirm
same-sex relationships as marriages in violation of their religious or moral
convictions. Even people who personally support same-sex marriage and gender
transitions can see that the government is not justified in coercing people who
do not. After all, it is reasonable for citizens to believe that humans are
created male and female and that marriage is the union of man and woman. When
citizens lead their lives and run their businesses in accord with these
beliefs, they deny no one equality before the law. They deserve protection
against government coercion.
Sexual Orientation and Gender
Identity Are Conceptually Different from Race. Sexual orientation and gender identity are radically
different from race and thus should not be elevated to a protected class in the
way that race is. First, race manifests itself readily, whereas sexual
orientation and gender identity are ambiguous, subjective, and variable traits.
Second, sexual orientation and gender identity are linked to actions, which are
a proper subject matter for moral evaluation. Race is not.
Martin Luther King Jr. dreamed that
his children would be judged not by the color of their skin, but by the content
of their character. A person’s character is expressed in his voluntary actions,
and it is reasonable to make judgments about those actions. Race implies
nothing about one’s actions. But in practice, sexual orientation and gender
identity terms are frequently used in reference to a person’s actions. “Gay”
comes to mean not simply a man who experiences same-sex attraction, but one who
voluntarily engages in sexual conduct with other men. “Lesbian”
similarly comes to mean a woman who engages in sexual conduct with other women.
Meanwhile, “transgender” is used not simply to describe someone who experiences
distress at his biological sex, but a biological male who voluntarily presents
himself to the world as a female or a biological female who voluntarily
presents herself as a male. This differs categorically from people in the civil
rights era who from the moment they were born were excluded by law and practice
from massive areas of public life simply because of the color of their skin.
Professor John Finnis of the
University of Oxford explains why most modern legal systems are right to resist
adding sexual orientation (much less gender identity) to antidiscrimination
provisions:
[T]he standard modern position
deliberately rejects proposals to include in such lists the item “sexual
orientation.” For the phrase “sexual orientation” is radically equivocal.
Particularly as used by promoters of “gay rights,” it ambiguously assimilates
two things which the standard modern position carefully distinguishes: (I) a
psychological or psychosomatic disposition inwardly orienting one towards
homosexual activity; (II) the deliberate decision so to orient one’s public
behavior as to express or manifest one’s active interest in and endorsement of
homosexual conduct and/or forms of life which presumptively involve such
conduct.
Indeed, laws or proposed laws
outlawing “discrimination based on sexual orientation” are always interpreted
by “gay rights” movements as going far beyond discrimination based merely on
(i) A’s belief that B is sexually attracted to persons of the same sex. Such
movements interpret the phrase as extending full legal protection to (ii)
public activities intended specifically to promote, procure, and facilitate
homosexual conduct.[34]
Rather than merely protecting
against unjust discrimination based on involuntary attractions or desires, SOGI
policies forbid citizens from considering public actions. But responding to
what other people do is a reasonable basis for human action, something that
government should not prohibit. Professor Finnis concludes:
So, while the standard position
accepts that discrimination on the basis of type I dispositions is unjust, it
judges that there are compelling reasons both to deny that such injustice would
be appropriately remedied by laws against “discrimination based on sexual
orientation,” and to hold that such a “remedy” would work significant
discrimination and injustice against (and would indeed damage) families,
associations, and institutions which have organized themselves to live out and
transmit ideals of family life that include a high conception of the worth of
truly conjugal sexual intercourse.[35]
Finnis’s argument highlights one of
SOGI policies’ most concerning implications: The laws would further weaken the
marriage culture and the ability of citizens and their associations to affirm
that marriage is the union of a man and a woman and that sexual relations are
reserved for marriage so understood. SOGI laws treat these convictions as if
they were bigotry.
SOGI laws impugn judgments common to
the Abrahamic faith traditions and to great thinkers from Plato to Kant. By the
light of religion, reason, and experience, many people of good will believe
that our bodies are an essential part of who we are and that maleness and
femaleness are not arbitrary constructs but objective ways of being human. A
person’s sex is to be valued and affirmed, not rejected or altered. Our sexual
embodiment as male and female goes to the heart of what marriage is: a union of
sexually complementary spouses from which the next generation naturally
springs. Sexual orientation and gender identity refers not only to thoughts and
inclinations, but also to behavior, and it is reasonable for citizens to make
distinctions based on actions. However, SOGI laws would prohibit reasonable
decisions made in response to behaviors that are fraught with moral weight.
SOGI laws impinge on the ability of
people to make reasoned and reasonable moral judgments concerning human
sexuality in part because the definitions of sexual orientation and gender
identity are ambiguous. They make it unlawful for citizens to engage in what
the government deems to be “discrimination” based on an “individual’s actual or
perceived sexual orientation or gender identity.” “Sexual orientation” is
typically defined as “homosexuality, heterosexuality, or bisexuality,” but the
laws leave those terms undefined and offer no principle that limits
“orientation” to those three. The definition of “gender identity” is usually
just as elastic: “the gender-related identity, appearance, or mannerisms or
other gender-related characteristics of an individual, with or without regard
to the individual’s designated sex at birth.”[36]
Two eminent authorities—Paul McHugh,
MD, the university distinguished service professor of psychiatry at the Johns
Hopkins University School of Medicine, and Gerard V. Bradley, a professor of
law at the University of Notre Dame—explain why antidiscrimination laws based
on these categories are problematic as a matter of science and the law:
[S]ocial science research continues
to show that sexual orientation, unlike race, color, and ethnicity, is neither
a clearly defined concept nor an immutable characteristic of human beings.
Basing federal employment law on a vaguely defined concept such as sexual
orientation, especially when our courts have a wise precedent of limiting
suspect classes to groups that have a clearly-defined shared characteristic,
would undoubtedly cause problems for many well-meaning employers.[37]
McHugh and Bradley caution against
elevating sexual orientation and gender identity to the status of protected
characteristics because of the lack of clear definition:
“Sexual orientation” should not be
recognized as a newly protected characteristic of individuals under federal
law. And neither should “gender identity” or any cognate concept. In contrast
with other characteristics, it is neither discrete nor immutable. There is no
scientific consensus on how to define sexual orientation, and the various
definitions proposed by experts produce substantially different groups of
people.[38]
Continuing, they summarize the
relevant scholarly scientific research on sexual orientation and gender identity:
Nor is there any convincing evidence
that sexual orientation is biologically determined; rather, research tends to
show that for some persons and perhaps for a great many, “sexual orientation”
is plastic and fluid; that is, it changes over time. What we do know with
certainty about sexual orientation is that it is affective and behavioral—a
matter of desire and/or behavior. And “gender identity” is even more fluid and
erratic, so much so that in limited cases an individual could claim to “identify”
with a different gender on successive days at work. Employers should not be
obliged by dint of civil and possibly criminal penalties to adjust their
workplaces to suit felt needs such as these.[39]
Because sexual orientation and
gender identity are ambiguous, subjective concepts that may change over time, a
law invoking them to define a protected class would be especially ripe for
abuse.
It is not clear, moreover, what
would prevent the category of “sexual orientation” from expanding to cover a
host of inclinations and behaviors. McHugh and Bradley explain this policy
problem in the context of the proposed ENDA:
Despite the effort of ENDA’s
legislative drafters to confine “sexual orientation” to homosexuality,
heterosexuality, and bisexuality, the logic of self-defined “orientation” is
not so easily cabined…. Even polyamory, “a preference for having multiple
romantic relationships simultaneously,” has been defended as “a type of sexual
orientation for purposes of anti-discrimination law” in a 2011 law review
article.[40]
No principle limits what will be
classified as a sexual orientation or gender identity in the future. For
example, Wesleyan College extended the LGBT acronym to recognize
LGBTTQQFAGPBDSM students.[41] Will
SOGI laws be used to protect all of these numerous orientations and identities
including those clearly defined by their actions, such as sadism and masochism?
If not, why not?
Lack of a limiting principle led
McHugh and Bradley to conclude that SOGI laws would “lead to insurmountable
enforcement difficulties, arbitrary and even whimsical results in many cases, and…would
have an unjustified chilling effect upon all too many employers’ decisions.”[42] Whatever
difficulties exist in enforcing laws banning discrimination because of race,
they pale in comparison to the conceptual line-drawing problems associated with
SOGI laws.
Laws Protecting Against Racism Were
Necessary and Justified, Unlike SOGI Laws. Government should never penalize people for expressing or
acting on their view that marriage is the union of husband and wife, that
sexual relations are properly reserved for such a union, or that maleness and
femaleness are objective biological realities that people should accept instead
of resist. Such views are inherently reasonable, even as people continue to
disagree about them. Some people, however, want the government to penalize
actions based on these reasonable beliefs, claiming that it is akin to racism.
They are wrong. Here is why.
While protections against racial
discrimination have been necessary and justified, antidiscrimination laws based
on sexual orientation and gender identity are neither.
To see how racial discrimination was
always alien to our liberties, rightly understood, we can look to history. “The
most robust of all property rights,” writes the law professor Adam MacLeod, “is
the right to exclude, which enables an owner to choose which friends,
collaborators, and potential collaborators to include in the use of land and
other resources.”[43] In
common law, these protections extend even to the commercial domain: “If a
property owner opens his or her domain to the public as a bakery, for example,
the owner does not thereby relinquish her right to exclude. Rather, the common
law requires the landowner to have a reason for excluding.”[44]
But there are no such reasons for
excluding on the basis of race, MacLeod argues:
To combat widespread racial
discrimination, Congress and state legislatures promulgated rules in the latter
half of the twentieth century that prohibit discrimination in public
accommodations and large-scale residential leasing on the basis of race….
In essence, these laws established a
bright-line rule. Exclusion on the basis of race is always unreasonable, and
therefore unlawful. These laws pick out motivations for exclusion that are
never valid reasons. This wasn’t really a change in the law—it was never
reasonable to discriminate on the basis of race—but rather a conclusive statement
of what the law requires.[45]
Before the Civil War, a dehumanizing
regime of race-based chattel slavery existed in many states. After abolition,
Jim Crow laws enforced race-based segregation. Those wicked laws enforced the
separation of persons of different races, preventing them from associating or
contracting with one another. Even after the Supreme Court struck down Jim Crow
laws, integration did not come easily or willingly in many instances. Public
policy therefore sought to eliminate racial discrimination, even when committed
by private actors on private property.
Racial segregation was rampant,
entrenched, and backed by state-endorsed violence when Congress intervened to
stop it. Today, however, market forces are sufficient to ensure that people
identifying as gay or lesbian receive the wedding-related services they seek.
In every publicized case of a business owner declining to facilitate a same-sex
ceremony, the service sought by the couple was readily available from other
businesses. In other words, a pluralistic civil society is policing itself; no
law is needed here.
Furthermore, experience shows that
the right of religious liberty has been invoked largely with respect to
marriage, not with respect to sexual orientation in general. Citizens have
resisted being coerced into celebrating or providing services to same-sex
weddings and treating same-sex relationships as marriages in violation of their
beliefs. Devout Christian bakers, for example, will serve gays and lesbians
like any other person, but might not render their baking services for a
celebration of a same-sex wedding.
MacLeod explains how the right to
exclude on a reasonable basis applies in these situations:
Why is it unreasonable for a
photographer to serve all people, including those who self-identify as
homosexual, but to refuse to endorse by her conduct the claim that a same-sex
commitment ceremony is, in fact, a wedding? If a jury or other competent
fact-finder determines that the photographer has a sincere moral or religious
conviction that marriage is the union of a man and a woman (and therefore does
not include a same-sex couple, a polyamorous group, a polygamous family, and so
on), then the photographer has a reason not to use her property (in this case,
her camera and her business) to endorse what she believes to be a lie.[46]
Running a business, school, or
charity in accordance with the view that marriage is a union of husband and
wife is reasonable. The same is true for a business, school, or charity that
implements bathroom or locker room policies based on the biological differences
of the sexes. Even if one disagrees with these beliefs and policies, they are
reasonable and should remain lawful, unlike racist views which are unreasonable
and rightly unlawful.
Bans on Interracial Marriage Were
Based on Racism and Had Nothing to Do with Marriage. People who consider opposition to SOGI laws as analogous to
racism often make their argument by comparing current opponents of same-sex
marriage to people who once opposed interracial marriage. This argument also
fails as a historical and conceptual matter, but few people know the relevant
history. The assumption that marriage is the union of male and female was
nearly universal among human societies until the year 2000. Same-sex marriage
is the work of revisionism in historical reasoning about marriage. By contrast,
racial segregation laws, including bans on interracial marriage, were aspects
of an insidious ideology that arose in the modern period in connection with
race-based slavery and denied the fundamental equality and dignity of all human
beings. The race of the spouses has nothing to do with the nature of marriage,
and it is therefore unreasonable to make it a condition of marriage.[47]
Interracial marriage bans are the
exception in world history. They have existed only in
societies with a race-based caste system, in connection with race-based
slavery. On the other hand, the understanding of marriage as the union of male
and female has been the norm throughout human history, shared by the great
thinkers and religions of both East and West and by cultures with a wide variety
of viewpoints about homosexuality.
Likewise, many religions, quite
reasonably, teach that human beings are created male and female and that male
and female are created for each other in marriage. Nothing even remotely
similar is true of race.
Far from having been devised as a
pretext for excluding same-sex relationships—as some now charge—marriage as the
union of husband and wife arose in many places over several centuries entirely
independent of and well before any debates about same-sex relationships. Indeed,
it arose in cultures that had no concept of sexual orientation and in some that
fully accepted homoeroticism and even took it for granted.[48]
Searching the writings of Plato and
Aristotle, Augustine and Aquinas, Maimonides and al-Farabi, Luther and Calvin,
Locke and Kant, and Gandhi and Martin Luther King Jr., one finds that the
sexual union of male and female goes to the heart of their reflections on
marriage, but considerations of race with respect to marriage are simply
absent.[49] Only
late in human history do we see political communities prohibiting interracial
marriage. Such bans had nothing to do with the nature of marriage and
everything to do with denying racial equality.
The prohibitions of interracial
marriage in colonial America were unprecedented, writes the historian Nancy
Cott of Harvard:
It is important to retrieve the
singularity of the racial basis for these laws. Ever since ancient Rome,
class-stratified and estate-based societies had instituted laws against intermarriage
between individuals of unequal social or civil status, with the aim of
preserving the integrity of the ruling class…. But the English colonies stand
out as the first secular authorities to nullify and criminalize intermarriage
on the basis of race or color designations.[50]
Laws banning interracial marriage
were virtually unique to America, explains the legal scholar David Upham: “As
one jurist explained in 1883…‘[m]arriage is a natural right into which the
question of color does not enter except as an individual preference expressed
by the parties to the marriage. It is so recognized by the laws of all nations
except our own.’”[51] The
English common law, which Americans inherited, imposed no barriers to
interracial marriage.[52] Antimiscegenation
statutes, which first appeared in Maryland in 1661, were the result of African
slavery.[53] Slaves,
Cott notes, “could not marry legally; their unions received no
protection from state authorities. Any master could override a slave’s marital
commitment.”[54] They
were not citizens or even persons in the eyes of the law. “The denial of legal
marriage to slaves quintessentially expressed their lack of civil rights,”
writes Cott. “To marry meant to consent, and slaves could not exercise the
fundamental capacity to consent.”[55]
Francis Beckwith summarizes the
history of antimiscegenation laws:
The overwhelming consensus among
scholars is that the reason for these laws was to enforce racial purity, an
idea that begins its cultural ascendancy with the commencement of race-based
slavery of Africans in early 17th-century America and eventually receives the
imprimatur of “science” when the eugenics movement comes of age in the late
19th and early 20th centuries.[56]
He concludes:
Anti-miscegenation laws, therefore,
were attempts to eradicate the legal status of real marriages by injecting a
condition—sameness of race—that had no precedent in common law. For in the
common law, a necessary condition for a legitimate marriage was male-female
complementarity, a condition on which race has no bearing.[57]
In other words, antimiscegenation
laws were but one aspect of a legal system designed to hold a race of people in
a condition of economic and political inferiority and servitude. They had
nothing to do with the nature of marriage. At their heart was a denial of human
dignity.
Race has nothing to do with
marriage, but marriage has everything to do with uniting the two halves of
humanity—men and women—as husbands and wives and as mothers and fathers
committed to any children they bring into the world. So while marriage must be
color-blind, it cannot be blind to sex. The melanin content of a person’s skin
has nothing to do with his capacity to unite with another in the bond of
marriage as a comprehensive union naturally ordered to procreation. However,
the sexual difference between a man and a woman is at the heart of marriage.
Men and women, whatever their race, can unite in marriage. Children, whatever
their race, deserve a mom and a dad—their own mom and dad wherever possible.
Conclusion
The problem with SOGI policies is
not merely that they are unnecessary, that they produce unintended but
profoundly damaging consequences, or that they are based on a false analogy
between same-sex marriage and interracial marriage. The main problem is even
deeper: Sexual orientation and gender identity are radically different from
race and should not be elevated to a protected class in the way that race is.
There are no good historical or philosophical reasons for the law to treat
sexual orientation and gender identity as it treats race—and doing so has serious
costs.
SOGI laws are a solution in search
of a problem. They pose serious problems for free markets and contracts, free
speech and religious liberty, and the health of our culture and of pluralism.
The main justification used to defend SOGI laws—that distinction made because
of sexual orientation or gender identity is equal to invidious discrimination
by race or color—fails conceptually, historically, and practically.
In this context, free markets and
free contracts can and do provide the best solutions, while also respecting
Americans’ freedom of association, freedom of religion, and freedom of speech.
—Ryan T. Anderson, PhD, is William E. Simon Senior Research Fellow in American
Principles and Public Policy in the Richard and Helen DeVos Center, of the Institute
for Family, Community, and Opportunity, at The Heritage Foundation.
http://www.heritage.org/civil-society/report/sexual-orientation-and-gender-identity-sogi-laws-threaten-freedom