One important question surrounding local nondiscrimination ordinances for housing and employment, which was highlighted in the recent debate on American Fork’s two proposed ordinances (housing, employment), is whether such ordinances create a new “protected class.” The practical importance of this debate is that the creation of other protected classes (race, sex, etc.) has given, through court decisions, special privileges and rights only to particular groups in society.[pullquote]Protecting “sexual orientation” and “gender identity” in nondiscrimination ordinances will create new protected classes.[/pullquote]
In other words, if protecting “sexual orientation” and “gender identity” from discrimination in employment and/or housing creates new protected classes, it is very likely to eventually give special privileges to homosexuals and/or those who perceive their gender as being different than that assigned to them by nature.
Various supporters of the proposed ordinances in American Fork, including both citizen activists and policymakers, have argued that the ordinances would not create a protected class. However, a recently published article on CNN’s blog, from a “gay-rights” advocate in Georgia, would seem to contradict their argument.
Lamenting the fact that “sexual orientation” and “gender identity” are not protected in some employment anti-discrimination laws, the advocate described the situation on the federal level in these words: “sexual orientation and gender identity are not recognized as protected classes” (emphasis added).
Evidently, there is no question in this advocate’s mind that protecting “sexual orientation” and “gender identity” in employment law would create new protected classes. Indeed, he takes for granted that putting these phrases into employment law would have that effect.
And the federal government agrees with him. In the “Equal Employment Opportunity Terminology” page of the national archives, “protected class” is defined as “the groups protected from the (sic) employment discrimination by law.” Pretty straightforward: If you choose to add new protections in employment anti-discrimination laws, you are creating new protected classes … period.
“But wait!” savvy supporters of the ordinances might say. “Nondiscrimination ordinances aren’t protecting particular groups! They are protecting ‘sexual orientation’ and ‘gender identity,’ which applies to everyone. Like the ordinances say, they do ‘not create any special rights or privileges…because every person has a sexual orientation and a gender identity.’ ” (As an aside, let’s just ignore the fact that the latter part of this declaration is a scientifically unproven illusion, and stay on point for the purpose of brevity.)
We could say the same thing about “race” – we all have one, right? And yet, the courts have decided that placing this broad category into employment laws is equivalent to protecting specific groups (racial minorities) in the workplace. Hence, these seemingly broad protections create specific protected classes, and the same is very likely to happen by inserting “sexual orientation” and “gender identity” into employment anti-discrimination law.
Despite the fact that advocates of the “gay rights” agenda in Utah say otherwise, the legal reality is that protecting “sexual orientation” and “gender identity” in nondiscrimination ordinances will create new protected classes. Cities and counties in Utah simply do not have the constitutional or legal authority to exempt themselves from decades of legal precedent, despite any language or disclaimer in an ordinance saying otherwise.
That such deceptive language finds its way into nondiscrimination ordinances suggests that it is there to lull Utahns into a false sense of security, thus leading them toward a willingness to do what they would otherwise avoid.