Thursday, March 19, 2015

Having failed at marriage discrimination Ryan Anderson attacks ENDA via Witherspoon

Ryan T. Anderson
Ryan T. Anderson wants us to know Sexual Orientation and Gender Identity Are Not Like Race: Why ENDA is Bad Policy. ENDA, the Employment Non-Discrimination Act, has been in the works (with and without prohibitions for discrimination in the basis of gender identity) since 1994. It was last introduced in 2013 when a watered down version was passed in the Senate but couldn't get out of committee in the House. Off topic, if we want workplace protections then we must first change the makeup of Congress. Mr. Anderson seems to be seeking another anti-gay issue to replace marriage discrimination.

By now Mr. Anderson's Catholic boilerplate has a familiar ring to it:
ENDA does not protect equality before the law. Instead, it would create special privileges that are enforceable against private actors. Employers should respect the intrinsic dignity of all of their employees, but ENDA is bad public policy. Its threats to our freedoms unite civil libertarians concerned about free speech and religious liberty, free marketers concerned about freedom of contract and government interference in the marketplace, and social conservatives concerned about marriage and culture.
That's pretty much what the bishops keep saying when it comes to the treatment of LGBT citizens and parishioners. They respect the dignity of all but … The simple fact is that, if ENDA is bad public policy then the Civil Rights Bill of 1964 is bad public policy. Perhaps Mr. Anderson thinks that it was. Anderson explains further:
Part of the reason why ENDA creates these threats is that the definition of sexual orientation and gender identity is ambiguous. ENDA makes illegal what it considers to be discrimination based on an “individual’s actual or perceived sexual orientation or gender identity.”
The ambiguity is manufactured confusion. In point of fact sexual orientation and gender identity are no more ambiguous than race and religion which are protected by the 1964 Act. As a matter of common sense I think that a third party (a hearing officer, judge or other official) can make a reasonable determination whether or not someone has been discriminated against because they are gay or transgender. 

There is a simpler approach. Twenty-one states and the District of Columbia prohibit employment discrimination based on sexual orientation. 18 states and D.C. also prohibit discrimination based on gender identity. Where are the cases from any of those states that are problematic because of some ambiguity? Surely Mr. Anderson can cite examples from more than a third of the states.

Anderson then relies on psychiatrist Paul McHugh and Gerard Bradley, a professor of law at Notre Dame. Both are conservative Catholics. In spite of an otherwise stellar career, McHugh (who is now 84) claims that gender variance is essentially a lifestyle choice or an ideology. In 2013, McHugh posted his own opposition to ENDA on this same Witherspoon Institute blog. As for Bradley, he claimed that Judge Vaughn Walker made up his mind about Perry v. Schwarzenegger before trial due to the fact that Walker is gay (a fact known in advance by both sides who agreed that it was a non-issue) and should have recused himself. In other words both of these guys are Defenders of the Faith. Yet Anderson quotes them:
Social 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.
I don't know what social science these guys relied on (nor when they made this unfortunate quote) but that is sheer nonsense. Every medical, counseling and sociological professional organization has concluded that sexual orientation is innate and immutable. And by the way, when did religion (which is protected by the 1964 Act) become immutable? That would be news to millions of atheists and converts.

Eventually Anderson wades into the deep batshit pool:
While race implies nothing about one’s actions, sexual orientation and gender identity are frequently descriptions for one’s actions: “gay” denotes men who engage in voluntary sex acts with other men, “lesbian” denotes women who engage in voluntary sex acts with other women, and “transgender” denotes a biological male who voluntarily presents himself to the world as if female or a biological female who voluntarily presents herself to the world as if male. “Race” and “sex,” by contrast, clearly refer to traits, and in the vast majority of cases denote no voluntary actions.
No Mr. Anderson. Gay men and women are discriminated against, not because of who they have sex with, but because of who people think they have sex with. Moreover, to suggest that there is something voluntary about being transgender is as preposterous as the assertion that sexual orientation is a choice. Moreover, isn't Catholicism a description for one's actions in addition to their beliefs. The hypocrisy and selective observation are astounding. But it gets worse:
ENDA would ban decisions based on moral views common to the Abrahamic faith traditions and to great thinkers from Plato to Kant as unjust discrimination.
Wrong again. Mr. Anderson's faith only requires that he not have sex with another man (by the way I think that he is gay). The religious decision that people are faced with only applies to LGBT people. Religion would keep them in the closet. Firing, not promoting or not hiring someone because of their sexual orientation is not a decision based on faith. It is a decision based on ignorance and prejudice. It is no more tolerable than a closeted white supremacist not hiring a Jew or a Black based upon what they always claim are their religious beliefs. After all, ask any Klansman and he will tell you that above all he is a Christian. You'll love this part:
ENDA could also stifle speech in the workplace. For example, as Hans Bader notes, the Supreme Court found that Title VII “require[s] employers to prohibit employee speech or conduct that creates a ‘hostile or offensive work environment’ for women, blacks, or religious minorities.” ENDA would extend these restrictions to “actual and perceived sexual orientation or gender identity.”

Consequently, employees or employers who express disapproving religious or political views of same-sex behavior could potentially create enormous legal liabilities. ENDA really would become a “general civility code” far beyond the scope of Title VII.
Fortunately many if not most of America's largest corporations have taken this matter out of Mr. Anderson's hands by prohibiting homophobic or transphobic conduct or speech in the workplace. It has no place in the workplace. Why should an employer or employees be able to create a hostile environment for LGBT coworkers? What is the business necessity for allowing that conduct? We don't allow Christians to denigrate Jews in the workplace. Why doesn't that rise to an infringement on religious liberty and free speech. Mr. Anderson has never really worked for a business. His naivete is obvious.

Anderson eventually concludes:
ENDA would limit the ability of private employers to run their own businesses. It is an unjust assault on the consciences and liberties of people of goodwill who happen not to share the government’s opinions about issues of marriage and sexuality. Employers should respect the intrinsic dignity of all of their employees, but ENDA is not the right policy to realize that goal. Whether you care about civil liberties, market economies, traditional values, or all three—as I do—it is important to see that ENDA is bad public policy.
What Anderson fails to appreciate is that degrading gay people should not be part of the business plan for any enterprise. And where is the evidence of abuse in any of the 18 states that prohibit employment discrimination based upon sexual orientation or gender identity? Where are the cases?

This is reminiscent of the time just prior to the passage of the Matthew Shepard Act in 2009. Christians were in an uproar claiming that the only purpose of the act was to imprison pastors for preaching the gospel. Mass email after mass email warned of the Christian persecution that was being implemented. Today I have to ask; Where are all those locked up preachers?

No comments:

Post a Comment

Please be civil and do NOT link to anti-gay sites!

Note: Only a member of this blog may post a comment.