Sexual Orientation and Gender Identity Laws: When Anti-Discrimination Becomes Discrimination

After the June Supreme Court ruling mandating same-sex marriage in all 50 states, the left has proposed sexual orientation and gender identity (SOGI) “antidiscrimination” laws in many states as the next item on its wish list.

For example, Pennsylvania is one of  several states considering adopting a sexual orientation and gender identiylaw, while Houston recently rejected one.

As the debate continues, legislators should keep in mind that there are numerous reasons sexual orientation and gender identiy laws are bad public policy.

Take, for example, Cynthia and Robert Gifford. During Thanksgiving week they found themselves defending their religious beliefs before the Appellate Division of the New York Supreme Court. Their offense? Acting on their belief that marriage is between a man and a woman.

The Giffords live on Liberty Ridge Farm, where they hosted seasonal events and weddings in their barn and house. In 2012, a same-sex couple asked Mrs. Gifford to host their wedding. Because of their Christian beliefs, the Giffords declined. An administrative law judge then fined the couple $13,000 for “sexual orientation discrimination.” To avoid future penalties, the Giffords decided to stop hosting wedding ceremonies.. According to Cynthia Gifford, their business has been “significantly” harmed by the following their conscience.

In the Giffords’case, it was New York state that was doing the discrimination against them because they acted in accordance with their beliefs about marriage.

The Giffords’ story is just one example of why sexual orientation and gender identity laws—such as the proposed Pennsylvania “Fairness Act”–are a bad idea. In a new report, “Sexual Orientation and Gender Identity (SOGI) Laws Threaten Freedom,” Ryan T. Anderson, The Heritage Foundation’s William E. Simon senior research fellow in American Principles and Public Policy, makes a convincing case that sexual orientation and gender identity laws are bad public policy.

Anderson makes the following arguments:

  • Sexual orientation and gender identity laws are ambiguous:

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.

  • Sexual orientation and gender identity laws threaten fundamental American rights and values, values that both sides in the culture wars share:

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.

  • Sexual orientation and gender identity laws would expose children to adult debates:

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.

  • Sexual orientation and gender identitylaws invade privacy:

…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.

  • Sexual orientation and gender identity laws would force employers to censor their speech and beliefs and those of their employees:

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.

  • Finally, sexual orientation and gender identity laws trample citizens’ rights to make decisions based on reasonable beliefs about sexuality:

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….However, SOGI laws would prohibit reasonable decisions made in response to behaviors that are fraught with moral weight.

Anderson’s arguments show that we should allow the market to provide live-and-let-live solutions to the sensitive issues of sexual orientation and gender identity. Such solutions allow both sides space to live their lives without government interference. Pennsylvania’s legislators would do well to consider Anderson’s compelling case that the best way to respect freedom and dignity for all is to resist sexual orientation and gender identity laws.

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Source material can be found at this site.

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