The ENDA Game

As The Heritage Foundation’s Ryan Anderson notes in his report about ENDA, “ENDA threatens fundamental First Amendment rights. It creates new, subjective protected classes that will expose employers to unimaginable liability. Furthermore, ENDA would increase government interference in labor markets in ways that could harm the economy.”

According to the text of the bill, its purposes are “to address the history and persistent, widespread pattern of discrimination, including unconstitutional discrimination, on the bases of sexual orientation and gender identity by private sector employers and local, State, and Federal Government employers,” to prohibit such discrimination, and to enforce that prohibition.

That is, ENDA proports to do for sexual orientation and gender identity what past legislation has done for race.

But as Ryan Anderson points out, the differences between those claiming discrimination on the basis of sexual orientation or gender identity and those claiming discrimination on the basis of race couldn’t be more different.

First, while African-Americans were subject to slavery and, after being freed, to a century of Jim Crow laws, LGBT people have not. African-Americans were subject to employment discrimination along with other forms of unfair treatment, but as Anderson writes, “America has no similar history of society-wide legal prohibitions on employment based on sexual orientation or gender identity.”

Unlike race, sexual orientation has not prevented people from becoming C-level corporate executives, members of Congress, and leaders in journalism, entertainment, education, and media. That is, “the history and persistent, widespread pattern of discrimination” that ENDA claims to address doesn’t exist.

Second, in so far as there has been discrimination based on sexual orientation and gender identity, the market is already solving the problem. Anderson cites a report by the pro-gay Human Rights Campaign that eighty-eight percent of Fortune 500 companies have internal human resource policies that prohibit discrimination based on sexual orientation. They created these policies without the government forcing them because they believe it’s good business. If non-discrimination based on gender identity is also good business, company policies will change accordingly. And if they’re correct, you can expect nearly every company in America to follow suit.

Third, as Anderson writes, “while race is usually readily apparent, the groups seeking special status in ENDA are not defined by objective characteristics. Sexual orientation and gender identity are commonly understood to be subjective, self-disclosed, and self-defined. And unlike race, sexual orientation and gender identity are usually understood to include behaviors.”

You can tell at a glance whether someone is white, African-American, Hispanic, or Asian. There are objective and unchangeable characteristics that define people in these groups—anatomical characteristics, the melanin content of skin, and, of course, differences in DNA.

By contrast, sexual orientation is notoriously difficult even to define and is based on subjective feelings and behaviors. The search for an objective, unchangeable characteristic such as “the gay gene” has been an abject failure.

Anderson quotes Paul McHugh, Professor of Psychiatry at Johns Hopkins and Gerard Bradley, Professor of Law at Notre Dame who write, “There is no scientific consensus on how to define sexual orientation, and the various definitions proposed by experts produce substantially different groups of people…. 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.”

Gender identity—people with female bodies identifying themselves as male or people with male bodies identifying themselves as female—appears, according to McHugh and Bradley even more “fluid and erratic.”

Let me encourage you to read all of Ryan Anderson’s report, “ENDA: Threatens Fundamental Civil Liberties.” In it he details the damage ENDA would do to business, the economy, employment, marriage, and the freedoms of speech, religion, and association.

But for now, remember that sexual orientation and gender identity are not like race. Americans should not allow themselves to be taken in lest we end up with a law that is far more damaging and dangerous than the problem it purports to solve.

*This Article Published 11/8/2013