Responses to criticisms of Sutherland’s position on nondiscrimination ordinances


American Fork City Hall; Photo credit: Tricia Simpson

Sutherland Institute has expressed concerns about two proposed ordinances in American Fork that would require affected employers and landowners to consider “gender identity” and “sexual orientation” in making decisions about employees or property. Sutherland appreciates the thoughtful responses to its position, and this post responds to some of the criticisms of Sutherland’s statements.

Is Sutherland wrong about protected class status?

Saying that “sexual orientation” or “gender identity” will be given protected class status is entirely accurate. The phrase “protected class” merely means a group specifically singled out for special treatment in the law. Courts have decided that inclusion in anti-discrimination law is sufficient to obtain this protected class status. Thus, if the proposed ordinances are passed, protected class status has necessarily been granted. There are, of course, different opinions about what the effect of such a status will be. Supporters say the new status will have no effect. Sutherland Institute and others urge caution. The experiences of other states with anti-discrimination laws suggest that protected class status can have broad implications, even when the law specifically says it should not be understood as having that impact (as American Fork’s proposal does). 

As an illustration taken from a related, though different, context, in each of the state high court decisions mandating a redefinition of marriage (in Massachusetts, Californiaand Connecticut), the majority opinions have pointed to the extension of benefits to same-sex couples in those states in support of its conclusion. See Goodridge v. Department of Public Health, 798 N.E.2d 941, 962 & 967 (Mass. 2003); In re Marriage Cases, 183 P.3d 384, 428 (Cal. 2008); and Kerrigan v. Department of Public Health, 957 A.2d 407, 435 (Conn. 2008). This happened in Massachusetts even though the legislature had specified in one bill that “[n]othing in this act shall be construed so as to legitimize or validate a ‘homosexual marriage,’ so-called.” Mass. General Laws Ann. 151B §4; see Goodridge v. Department of Public Health, 798 N.E.2d 941, 977 (Mass. 2003) (Spina, J., dissenting). American Fork’s proposed ordinances may not lead to same-sex marriage inUtah, but these court rulings illustrate how language declaring the intent of the proposed ordinances can be meaningless in the judicial system. The proposed ordinances could easily be interpreted by courts to have implications beyond what the city council intends, even if the city disavows any other interpretation.

Does the proposed ordinance adequately protect religious liberty?

These proposed ordinances create unavoidable conflicts with religious liberty. Most religious denominations disapprove of sexual behavior outside of marriage between a husband and wife. The proposed ordinances treat that disapproval as akin to racial bigotry. Though the proposed ordinances exempt churches, they do not contain a specific exemption for religious believers individually. Although general religious exemptions may prevent some religious liberty conflicts for denominations, there is no similar protection for para-church organizations (such as nondenominational charitable ministries, religious broadcasters or religious fraternal organizations) or individual religious believers (such as business owners whose business has a religious element, such as a Christian bookstore), unless they go to the potentially costly effort to prove (and a court decides to agree) that it is an expressive association. A nondenominational private school with a religious objective, for instance, would have no guarantee of exemption from the proposed ordinances, even though such an exemption is possible.

Analogous laws in other states have affected owners of rental properties who objected to renting to unmarried cohabiting couples. See Swanner v. Anchorage Equal Rights Commission, 874 P.2d 274 (Alaska 1994). In a Canadian case, an evangelical charity that operates residential homes for people with disabilities fired a lesbian employee, and a lawsuit was filed resulting in a court order to the ministry to adopt a nondiscrimination policy regarding sexual orientation and train its employees not to discriminate on that basis. See Ontario Human Rights Commission v. Christian Horizons, 2010 ONSC 2105 (Ont. Div. Ct. 2010).

How could one of these proposed ordinances affect employers?

The current employment system in Utah is, of course, not perfect. It will sometimes allow people to be hired or fired for frivolous or even bad reasons. Of course, most Utahns surely believe that a person should be hired or fired or promoted based solely on factors related to job performance, though the law does not reflect that ideal. This speaks well of the people of the state. Creating a legal mandate of non-discrimination singling out “sexual orientation” and “gender identity” for special protection, though, would have unintended consequences for employers (likely without accomplishing the goal of equal opportunity).

“Sexual orientation” and “gender identity” discrimination laws necessarily modify the decision-making process for employers. Any business decision that involves an employee who identifies as “gay” or “transgender” will have to be made knowing that it might trigger an accusation of discrimination. Salt Lake City’s explanatory materials say that employers can still fire a “gay” employee if that employee has a drug problem or some issues that are work-related, but the employer is still likely to have to prove that the problem rather than the “orientation” motivated the decision. It may simply be the case that when adverse decisions need to be made, an employer will “play it safe” by letting go of a non-“gay” employee who cannot make a discrimination complaint rather than a “gay” employee who could.

The accusation will have added weight because the proposed discrimination ordinance creates a formal complaint process that could trigger prosecution by the city at most and an investigation at least. This raises the probability of compliance costs including attorney fees, training for employees to ensure they do not inadvertently say or do anything that might become the basis for a complaint, and even changes to restroom facilities. Even with an exemption for businesses with less than 15 employees, the proposed ordinances still apply to many businesses with very few employees. Added costs for such businesses could easily make a significant difference in the employer’s ability to do business.

Most employers will want to be fair and would gladly live by the principle that job performance is the correct criteria for employment decisions. A simple example helps one understand that this idea, simple in theory, can be complex in practice and becomes fraught with problems when used as a legal absolute.

Imagine an employer hires an individual for an outside sales position. This individual is hardworking, friendly and knowledgeable. These are the obvious indicators of job performance and they are all favorable for this individual. Then, the employee decides to begin wearing earrings that create large spaces in the ears. The employer feels uncomfortable with the way the employee will be perceived by customers and co-workers. Is this irrational? No, because although the employee may be well qualified in tangible things (punctuality, knowledge of product, etc.) they might create a business liability in intangible ways (the comfort level of customers, relationships with coworkers). Employers have to be given some leeway to reflect these important intangible factors in their decisions since they can have tangible effects on the viability of the business. Where a discrimination ordinance is in place an employer may honestly be concerned that an employee is alienating customers but will invariably have to be prepared for an accusation that his decision is discrimination against an employee’s “sexual orientation” or “gender identity” and be prepared to respond to formal complaints and prosecution by the city.

How could one of these proposed ordinances affect property owners and landowners?

The same factors that affect employers will affect property owners and landowners — where there is an applicable discrimination ordinance, their decisions about “gay” or “transgender” tenants, for instance, will have to be modified by the possibility that any adverse action could trigger a discrimination claim.

We can consider some very plausible scenarios: a landlord who includes a noise restriction in the lease agreement, or one who refuses to rent to individuals who cannot demonstrate an ability to pay, or one who will not rent to people with drug convictions. In theory, all of these are eminently reasonable and could be applied regardless of the claimed “orientation” of the affected party. Whenever there is a “gay” or “transgender” tenant or prospective tenant, and the tenant decides that the landlord’s “perceptions” had something to do with a decision the landlord made, the city will be invited to second-guess the decision to ensure that it is not made for some unlawful reason.

What are the implications of including “gender identity” in these proposed ordinances?

“Gender identity” is an extremely slippery and controversial concept. The idea is that there are people who are born as men or women but who believe either that they should be a member of another sex or at least should be able to look like a person of another sex. There is no restriction on how often these individuals could change their appearance or that it even be consistent at a given point in time (mustache and a dress). In fact, the pending federal legislation on this matter has been amended to require that a person’s “new” gender be consistent (they could only appear as a man or a woman at a given time, not both). This is really not much of a concession though it makes far more sense than the Salt Lake ordinance which does not include such a requirement. Under “gender identity” discrimination ordinances, a person’s identity as a man or woman could change many times in a short period of time and the indicia of change is “self perception,” not chromosomes, anatomy, a birth certificate, or a driver’s license.

There is also the thorny question of restroom accommodations. In a recent federal case a man who wanted to appear as a female wanted to use women’s restrooms and was fired by his employer. The case was dismissed because there was no discrimination law covering “gender identity,” but were there such an ordinance, the result could be very different. In fact, the Maine Human Rights Commission considered rules that would have required schools to allow a male to use a female restroom or play on a female athletic team, or vice versa, to comply with state law which prohibits “gender identity” discrimination although it has temporarily postponed the new regulations because of public outcry. It is not at all unlikely that an employer could be required to create new gender-neutral restrooms or allow a man to use the women’s restroom if that employer operates in a jurisdiction with a “gender identity” discrimination ordinance.

The attorney general of New York has recently forced a clothing retailer to enter a legal settlement in which the retailer will change its dress code discouraging cross-dressing and require employees to undergo training about appropriate pronouns to use for people who want to identify with another gender. The settlement stems from a lawsuit claiming the retailer discriminated on the basis of “gender identity.”


To contact American Fork city council members or the mayor to voice your opinion on this issue go here.