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.”

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

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  • JBT

    Discrimination based upon sexual orientation or gender identity is wrong just as discrimination based upon race, gender, religion, or age is also wrong.

    No amount of rationalizing and justification changes the fact that discrimination is wrong. All of the “worst case scenarios” given in this essay are just fear based nonsense. The same nonsense was used by the LDS Church and others to block the Equal Rights Amendment.

    Members of the GLTB community are human beings first and as such have the same rights as all other human beings in our society. All human beings deserve to be a “protected class” where it comes to discrimination in housing, employment, civil rights, etc.

    Bigotry and prejudice dressed up as moral values is still bigotry and prejudice.

    • Paul Mero

      I’m curious and interested to understand your use of the word “wrong.” Under what moral understanding of the human person is discrimination on the basis of “sexual orientation” and “gender identity” wrong? Are you using the term “wrong” because you believe “sexual orientation” and “gender identity” is synonymous with “human person”?

  • JBT

    I would argue that a gay individual is a human being who is entitled to the same rights as other human beings, and as such should not be discriminated against simply because of that person’s sexual orientation. It is morally and ethically wrong in our society to discriminate against any group of people based upon who they are as individuals. To do so is to practice prejudice and bigotry against a class of people. To use one’s personal moral values to justify discrimination is as wrong as the discrimination itself.

    It is repugnant to me that there are those in Utah who puff themselves up as morally superior to others who are not like themselves, and wish to discriminate against those individuals they have labeled inferior and not deserving of the same rights as everyone else.

    Prejudice and bigotry dressed up as moral values, is still prejudice and bigotry.

    • Buffy Snell

      Would you also consider it bigotry to use your personal moral values to justify discrimination against someone for pedophilia? Would you allow them to work at your daycare? Why or why not?

  • JBT

    Pedophilia is a criminal behavior. Being a homosexual is not. Any other questions Buffy?

    • Duane

      If or when pedophilia is decriminalized what position would you then take?

      In a society where pedophilia is not criminal, what is your position?

    • Duane

      You apparently accept discrimination against people who exhibit “criminal behavior.” Such discrimination presumably includes not just limited choices in housing or employment, but fines and incarceration. So you by implication violate your assertion that discrimination is always wrong. Really, your choice of when discrimination is acceptable or not is your system of morality, maybe even your “religion.”

      In the absence of a Supreme Being or some other source of universal moral authority, your system is not any more applicable to others than theirs is to you. IF there is a Supreme Being or God who has declared that homosexuality is a self-defeating behavior that is unacceptable, your system of morality will ultimately be irrelevant.

  • JBT

    In a society of laws those who break the law and through their criminal acts represent a danger to society lose some of their rights—freedom, gun ownership, right of association, right to vote to name a few. This is not discrimination but the response of a system of justice to lawbreaking behavior.

    Homosexuals are not pedophiles, nor are they law breakers. They are men and women just like you and me who want to be treated equally with law abiding heterosexuals in society. That homosexuality is a sin is simply a religious belief. A BELIEF, and nothing more. There are many Christian denominations who welcome gays, and gay couples into their congregations. There are many churches led gay ministers and pastors. There are many denominations who perform gay marriages and accept them as a blessed union under God of a couple who love one another and want to share their lives together. Unfortunately the LDS faith still doesn’t get it that gays are God’s children too and deserve to be treated as such. A question for the LDS faithful. . . . if “Heavenly Father” believes homosexuality is a sin, why did he make millions of people with that sexual orientation?????

    Discrimination based upon one’s sexual orientation is wrong. Discrimination based upon the color of one’s skin is wrong. Discrimination based upon one’s religion is wrong. Discrimination based upon one’s nationality is wrong. Discrimination of any class of people just because they are “different” than you is wrong.

    Prejudice and bigotry dressed up as moral values is still prejudice and bigotry.

  • Duane

    JBT, you have a seriously flawed understanding of LDS theology. God did not “make” millions of people gay in LDS doctrine. Your parents did not “make” your personality, they gave you a body and presumably tried to help you learn how to function in society. You came with your own personality and have exercised the God-given right to make your own choices.

    Asking why God made gays is as much a straw man argument as asking why He made Satan (or evil). He made neither. He doesn’t have to approve of or “validate” choices to engage in behavior that limits future opportunities for growth and learning and neither does His church.

  • Duane

    You know, JBT, you bounce back and forth. You say “…gays are God’s children too…” as if you believe in God, but deny that God could say homosexual behavior is inappropriate. It is not just the LDS Church that takes that stand. The Bible is pretty consistent about “men with men working that which is unseemly”.

    If you are gay, God did not make you that way. You had your own identity before God gave you the chance to some to earth. He knows what you need to do to maximize your opportunities in the next life and being gay will limit those opportunities.

    You should still be treated well by any decent person, LDS or not, but that does not require special status in the law, like preference in hiring or housing. Nor does being treated equally require ratification of your choices by those who choose differently.

  • Duane

    JBT, you never answered my questions about pedophilia being de-criminalized or societies where it is not criminal. There are societies where, at least until recently, cannibalism is not criminal. What about discrimination or prejudice against cannibals?

    I think you hide behind the “legality” of aberrant behavior. For centuries, homosexuality WAS illegal in many societies. Your arguments fall apart if homosexuality IS against the law, but I am sure you would THEN argue AGAINST the law. I suspect you would make the same arguments about abortion, but your position would be just as weak.

    You make judgements about right and wrong, but your real commitment appears to be to deviant behavior and you use any argument that you can find to support it.