The U.S. Senate will vote Monday on the “Employment Non-Discrimination Act”, legislation which supporters say offers basic workplace protections for homosexuals and transgendered Americans but critics warn will force businesses to cater to bizarre behaviors and force anyone who disagrees with those lifestyles to keep their mouths shut.
The legislation, also known as ENDA, would forbid employers from firing or refusing to hire anyone because of their sexual orientation or for asserting a different “gender identity” than their anatomy suggests. Supporters say protections in those areas are no different than longstanding bans on employment decisions made on the basis of race, sex, ethnicity, religion or disability.
However, critics contend there is a vast difference between judging a person on their skin color versus their sexual behavior.
“There’s a reason why we don’t allow discrimination based on race, which is that it’s a characteristic which is inborn, involuntary, immutable, innocuous and in the Constitution,” said Peter Sprigg, senior fellow in policy studies at the Family Research Council. “All of those criteria apply to race. None of them applies to the choice to engage in homosexual conduct or in cross-dressing behavior, which is what gender identity deals with.”
Sprigg further asserts that ENDA would result in unwarranted government meddling into the freedom business owners ought to have in selecting their employees.
“The general assumption should be that employers know best what is a relevant qualification for their employees. So any expansion of a list of restrictions like this constitutes further federal government intrusion into what normally is a free market decision. We need to approach the whole issue from that perspective,” said Sprigg.
Supporters of ENDA fiercely disagree with Sprigg’s assertion that the legislation seeks to protect behaviors rather than immutable characteristics since they also claim sexual orientation is immutable. Sprigg says even if that were true, there’s a huge difference.
“I’m not saying that people choose to experience same-sex attractions but they do choose to engage in homosexual conduct. The bill makes no distinction between attractions and conduct in terms of the protection that it offers,” said Sprigg, who says proclivities of prospective employees are important to faith-based employers as well as secular businesses that deal with children and other sensitive situations.
As intense as the debate over homosexuality has become, Sprigg says accommodating the gender identity issue is far more complicated since sexual orientation is often imperceptible but transgender employees are quite obvious. He says Democrats wouldn’t even touch transgender issues a decade ago but are moving full speed ahead since they believe national opinion has shifted in their direction. He also says that boldness is reflected in more aggressive policies in the bill.
“It used to be that they put in an exemption for facilities in which appearing unclothed is unavoidable. in other words, for facilities like showers and locker rooms that you might find in some workplaces. But that exemption has been removed from the current version of ENDA,” said Sprigg. “Because they don’t require any sex change surgery to change your gender identity, a man who is biologically male but identifies as female would be allowed to appear nude before other females in the locker room or shower. That is perhaps a most extreme application of this, but there’s nothing to prevent that in ENDA.”
So is this debate in the theoretical stage or are there jurisdictions that have already pursued these policies and have definable results? Sprigg says we do have enough data to spot a troubling pattern.
“We see that these laws result in a form of reverse discrimination. When the homosexuals come out of the closet at work, the Christians are driven into the closet. People have been overtly punished, even fired, merely for exercising their free speech rights to express their personal opinion that it would be best to abstain from homosexual conduct or best not to redefine marriage as something other than the union of a man and a woman,” said Sprigg.
“This kind of reverse discrimination is one of the things you won’t find in the text of ENDA but it’s one of the inevitable implications of it,” said Sprigg.
The Senate is scheduled to vote on the bill Monday night. The dramatic vote will be to cut off debate and proceed to a final vote. That requires 60 votes. Sprigg says supporters may have 59 votes right now so anyone concerned about the legislation need to contact their senator. House passage would be unlikely, but Sprigg fears Senate passage could build momentum and backers might even try to mount a discharge petition, which would bring the Senate bill to a House vote without committee consideration or the consent of GOP House leaders.
