A bill to prohibit workplace discrimination against homosexual and
transgender persons poses serious threats to religious freedom and
undermines the biological basis of gender, say its critics as it heads
to a crucial Senate vote.
“All Americans should oppose unjust discrimination, but ENDA does not
advance that goal. In fact, it moves us in the wrong direction,” said
scholar and author Ryan T. Anderson.
He told CNA on Nov. 5 that the proposed law “creates new, subjective
protected classes that would expose employers to unimaginable
liability.”
“No doubt these are difficult and delicate issues, and that is why they
are best left to those closest to the decision – not a one-size-fits-all
rule from Washington.”
The Employment Non-Discrimination Act would prohibit discrimination on
the basis of sexual orientation and the employee’s stated gender
identity by all larger non-religious, civilian employers.
Religious organizations, non-profit membership-only clubs, and employers
with fewer than 15 employees would be exempt from the legislation.
The bill has been introduced in every congressional session since 1994,
except for the 109th session from 2005-2007, but has never been passed.
President Barack Obama has voiced his support for both the 2011 and 2013
versions of the bill.
On Nov. 5, the Senate voted for cloture on the bill, ending any
potential for a filibuster, and ensuring that the legislation will come
to a vote in the chamber in the coming days.
Supporters of the bill note that individuals who identify as gay,
lesbian, bisexual, or transgender have faced discrimination in the
workplace and are hired at a lower rate than persons who do not openly
state their sexual identity.
Opponents, however, argue that the legislation goes further than
addressing discrimination, and creates new concerns for religious
freedom and the understanding of sexuality within society.
In an Oct. 31 letter to Congress, three leading U.S. bishop explained
that while they welcome efforts “to end all forms of unjust
discrimination, including against those who experience same sex
attraction,” they ultimately cannot support the Employment
Non-Discrimination Act because it “does not justly advance the dignity
of all workers and authentic non-discrimination.”
The letter was signed by Bishop Stephen Blaire of Stockton, who chairs
the U.S. bishops’ Committee on Domestic Justice and Human Development;
Archbishop Salvatore Cordileone of San Francisco, who leads the
Subcommittee for the Promotion and Defense of Marriage; and Archbishop
William Lori of Baltimore, who heads the Religious Liberty Committee.
The bishops explained that as it is currently written, the proposed law
lacks an exception for a “bona fide occupational qualification” for
“those cases where it is neither unjust nor inappropriate to consider an
applicant’s sexual inclinations.”
This wording enshrines sexual attraction as a specially privileged class
by elevating ‘sexual orientation’ discrimination “above religion, sex,
and national origin discrimination,” to be at “the same and, until now
unique, level as race discrimination,” which allows no bona fide
occupational qualifications
In addition, the bill does not differentiate between same-sex attraction
and same-sex conduct, protecting same-sex extramarital actions under
the legislation’s language.
The bill’s emphasis on “gender identity” uses “force of law to a
tendency to view 'gender' as nothing more than a social construct or
psychosocial reality,” divorced from physical sex, the bishops added,
failing to properly protect privacy in areas of the workplace where it
would be reasonable to have only members of the same sex, such as
restrooms.
The proposed law may also be used to support the redefinition of
marriage as a union between two persons of the same sex, they continued,
“as a matter of federal constitutional right.”
Finally, the bishops noted, the bill poses a threat to religious freedom
and “could be used to punish as discrimination what many religions –
including the Catholic religion – teach, particularly moral teaching
about same-sex sexual conduct.”
Anderson – who is currently serving as William E. Simon Fellow in
Religion and a Free Society at The Heritage Foundation – argued that the
legislation “would limit the ability of private employers to run their
own businesses.”
The use of both ‘sexual orientation’ and ‘gender identity’ to “describe
behaviors as well as identities,” he noted, limits an employer’s ability
to reasonably “consider the impact of behaviors at the workplace,” such
as the impact of a male dressing and acting as a female, or vice versa,
in a school setting.
Some senators, such as Sen. Pat Toomey (R-Pa.) have tried to create
middle ground between the two predominant opinions on the legislation.
On Nov. 4, Toomey voted to bring the bill to a vote, while proposing an
amendment to broaden the bill’s religious freedom protections.
“I believe the Employment Non-Discrimination Act contains very important provisions,” Toomey said in a Nov. 4 press release.
“However, I also believe it should be improved, especially as it
pertains to religious organizations. We must strive to reach the
appropriate balance between protecting workers and protecting religious
freedom.”
Toomey's proposed amendment is not yet included in the legislation, and
his support for the bill when it is voted on may hinge on the adoption
of such religious liberty protections.
However, critics have argued that
even with the religious liberty amendment, the bill would fail to
address the other concerns surrounding the legislation.
If the bill passes the Senate, it is expected to face stronger opposition in the Republican-led House.