Oops! Oh yeah, that does create a protected class for ‘gays’ …

 

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.

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  • JBT

    Does it make any sense to you that it is perhaps those classes of U.S. citizens who are openly discriminated against who need anti discrimination laws that the rest of us do not?

    Whether these ordinances create a “protected class” or not is not the point. The point is that these GLBT people deserve the same equalitythat the rest of us enjoy. If you would stop to really think about it, their being different certainly doesn’t take anything away from you or your family. Why then do you continue to promote the bigotry and discrimination against this class of people?

    I am beginning to understand the national debate that Mormons are not really Christians. It seems that many of you folks have never really understood the phrase “love thy neighbor as thyself”. Jesus did not add the words “unless they are different than you”.

    • Derek H Monson

      JBT,

      Local nondiscrimination ordinances that protect “sexual orientation” and “gender identity” will not give homosexuals “the same equality that the rest of us enjoy.” They will likely give them privileges and protections that the rest of us DO NOT enjoy. The legal mechanism for that to happen is creating new protected classes using employment anti-discrimination laws, which create special judicial considerations that don’t exist for the rest of us.

      So, yes, creating new protected classes IS the point, and “gay rights” advocates know it. I suspect that they are happy whenever an argument obscures the point by taking a reasonable and noble idea like equality and perverting it into something that helps their favored interest group attain special rights.

      Derek Monson

    • Derek H Monson

      JBT,

      Another point worth noting relative to your comment is that, in the context of employment and housing, homosexuals already have “the same equality that the rest of us enjoy.” For instance, both homosexuals and heterosexuals can be fired or turned away from an apartment for their sexual behavior. There is no law anywhere in Utah that states “an employer may terminate a homosexual, but not a heterosexual, for reasons related to sexual behavior.”

      The reality is that any Utah resident – whatever their sexual preferences or perceived “gender identity” – can lose a job or be kicked out of a rental for a variety of reasons. Homosexuals and those who perceive their gender to be something other than what nature intended are just like everyone else in this regard.

      Derek Monson

  • JBT

    Derek that is nonsense. You are using twisted logic to rationalize and justify discriminating against homosexuals for who they are as human beings. The issue is not “sexual behavior”, the issue is the identity of the individuals. They are who they are. Who are you to say different? “Perceive their gender to be something different than nature intended. . .” Give me a break. You don’t have the power to look inside every man woman and child to see what forms their self image! What sanctimonious arrogance!

    An apartment owner would not refuse to rent to an individual or couple solely because they are heterosexual. As it currently stands an apartment owner can refuse to rent to an individual or couple solely because they are homosexual. Before you waste your time arguing that this type of discrimination would be difficult or impossible to prove, consider the situation where the homosexual couple had better references, proof of higher and more steady income than any of the heterosexual couples applying, but were denied anyway.

    If a tenant couple’s “sexual behavior” takes place quietly in the privacy of their bedroom with the shades drawn does the gender of the participants really make any difference. The essential question is whether society will continue to allow the landlord or employer to discriminate against a class of people based upon their own religious bias and bigotry.

    Our society has dealt with this issue as it has to do with race and color and answered a resounding no. Landlords and employers do not have the right to discriminate against persons based upon their race or the color of their skin.

    It is unfortunate that those who would deny equal rights to the gay minorities do not see the parallel between themselves and the racist and bigoted people in the South prior to the civil rights movement. They too rationalized and justified their beliefs based upon their religion.

    • Griffin Kearns

      “Our society has dealt with this issue as it has to do with race and color and answered a resounding no. Landlords and employers do not have the right to discriminate against persons based upon their race or the color of their skin.”

      @JBT: Do a little research before putting yourself on blast like that. It’s perfectly acceptable (and legal) to deny a potential tenant(s) application for housing based on their marital status, be they homo or heterosexual. It’s all up the landlord to decide. The Federal Fair Housing Acts (42 U.S. Code §§ 3601–3619) prohibit discrimination on the basis of race or color, religion, national origin, gender, familial status (having children and pregnancy), and physical or mental disability. Marital status is not one of the protected categories under federal law. Homosexuals can’t legally be married in Utah, so it’s a moot point.

    • Griffin Kearns

      Also, the fact that you think that people in the South were the only bigots in the country speaks *volumes* about how uninformed you are on the subject.

    • Derek H Monson

      JBT,

      Your first paragraph highlights one of the main issues underlying the debate about “gay rights”: two incompatible views on what it means to be human. To you and other “gay rights” supporters, an individual’s perception of their “sexual orientation” and “gender identity” is part of “who they are as human beings.” But for conservatives and many people of faith, “sexual orientation” and “gender identity” are illusions fabricated to justify and rationalize behavior that contradicts what it means to be a human being.

      “Self-image,” as you define it, is not an innate part of being human. Rather, being human means being born as a man or a woman with the capacity for moral reasoning and agency – the “self-image” you describe does not enter into that equation. My reasoning probably seems like arrogance to you because, under your twin paradigms of “sexual orientation” and “gender identity,” I would actually need “the power to look inside every man woman and child to see what forms their self image” in order to reasonably maintain my position. But in reality, I don’t need such superhuman powers because I can rely on basic facts of human nature and existence that have been recognized for centuries.

      Your second paragraph only distracts from the point. Both homosexuals and heterosexuals are equal under the law (in cities without nondiscrimination ordinances) because both can be granted or denied employment and housing based on their sexual behavior. The law does not treat individuals differently in this regard, and that is the definition of equality. At least, that is the definition of a reasonable, useful, and reality-based idea of equality.

      Concerning your third paragraph and fourth paragraphs, the problem is that you’ve labeled religious beliefs as “bias” and “bigotry.” You’ve assumed malicious motivation for every person of faith, which is a grand (and rather hypocritical) irony considering you just accused me of arrogance because I didn’t have the power to “look inside every man woman and child” to divine how they form their “self-image.”

      In any case, this gets back to my first point. Under the worldview of “sexual orientation” and “gender identity,” there is no place for the sincere religious beliefs maintained by millions of individuals, and the large majority of Utahns. The thinking of people of religious conscience today has no parallel to that of those who supported slavery because people are born with a skin color – a reality that is verified not only by plain observation but by reams of scientific study. People are not born with a “sexual orientation” or “gender identity” – concepts which cannot be verified either by plain observation or scientific study.

      In essence, you’ve defined as “bigotry” a sincere expression of one of the fundamental aspects of American freedom: the liberty to believe in and reasonably live religious principles in accordance with one’s conscience. If that is “bigotry,” then you’ve made “tolerance” into a worthless concept because it has simply become a way to justify and rationalize your hatred of thinking with which you disagree – the opposite of real tolerance.

      To finish up, I have to agree with the general point of Griffin Kearns’ comments. The realities of free homosexuals and people of religious faith today isn’t even in the same universe as black slaves and their slave masters before the civil war. If you honestly believe that, then you simply don’t know what you’re talking about.

      Derek Monson

  • JBT

    This is more of your nonsense.

    “But for conservatives and many people of faith, “sexual orientation” and “gender identity” are illusions fabricated to justify and rationalize behavior that contradicts what it means to be a human being.”

    You have in effect stated that gays are not human beings Derek. Listen to yourself. You are using “your LDS moral church values” to dehumanize an entire class of people. You come across like a homophobe and bigot with statements like these. I can’t believe the sanctimonious arrogance that is coming through in this thread. I feel very sorry for you and those like you that you cannot see yourself as others see you.

    Just because gays might think and act in ways that you would not, does not make them less human or less moral than you. They are just different. You don’t need to adopt their life styles, just allow them the equality to be who they are as persons. You know, live and let live.

    The entire basis of your argument that discrimination against gays is somehow different than discrimination against blacks rests upon your statement:

    “People are not born with a “sexual orientation” or “gender identity” – concepts which cannot be verified either by plain observation or scientific study.”

    You cannot possibly know this. When tens of thousands of men and women who are openly homosexual claim to know they were somehow “different” from their earliest recollections—who are you to say all of these people are lying. I don’t need to remind you that there are hundreds of these wonderful gay people who grew up right here in Utah in loving LDS families. You cannot possibly argue that they chose or learned their “gayness” from their environment—especially because of the grief that coming out causes them and their families in this culture. Why would any of these folks “choose” that orientation and lifestyle growing up in this environment? That makes no sense whatsoever.

    Another question for you Southerland folks. If Heavenly Father abhors homosexuality as much as you claim, why has he sent millions of them to earth since biblical times? I really want an answer.

    I know the comparison to racial bigotry makes those of you who would deny equal rights to gays uncomfortable. It does so because it is true. No matter how you dress your arguments, to deny equal rights to a minority class of citizens is discrimination. Those who practice or advocate discrimination in any form are bigots. Hiding behind one’s “sincere religious beliefs” only makes this travesty worse. You can practice your religion to your heart’s content, but when you deny others equal rights based on your religious beliefs, note I said beliefs—not truths. Then your “right to swing your fist” ends at the other person’s nose.

    • Derek H Monson

      JBT,

      How have I “stated that gays are not human beings”? Yes, I said that homosexuals act in ways that are in opposition to what it means to be human…but so does every other imperfect person in the world. We all do things in our lives that do not reflect or respect our human dignity (or others’ human dignity), but that doesn’t mean we aren’t human beings…it just means that sometimes we make poor decisions.

      If I come across as a “homophobe” or a “bigot” to you, it is probably because your way of thinking defines people with policy positions like mine that way, regardless of the reasoning behind those positions. For example, your response to my attempts to openly and honestly explain my thinking has been to attack it as “bigotry,” “discrimination,” “nonsense,” “twisted,” “sanctimonious,” and “arrogance.” That approach is not reflective of someone who’s openly and honestly trying to understand another person’s thinking, but rather of someone whose mind was made up about the other person’s thinking long before he ever heard or read it, and who is not open to considering other possibilities.

      It’s ironic (and again, somewhat hypocritical) that you’re telling me to “live and let live,” when it’s the “gay rights” advocates who are trying to push their world views of “sexual orientation” and “gender identity” into the laws that myself and everyone else in the Utah have to live by. I am perfectly happy to let homosexuals live their lifestyle how they choose…nothing in my blog post or comments have called for a criminalization of the “gay lifestyle” or homosexual behavior. However, advocates of “gay rights” do not seem willing to afford the same courtesy and respect to those they disagree with.

      So, according to you, we “cannot possibly know” whether someone is or is not born with a “sexual orientation” or a “gender identity,” yet we should use the law to protect these unknowable characteristics as if they were as plainly obvious as someone’s race? How is it reasonable or rational to ask that something be protected by law when it cannot be proven, for instance, in a court of law?

      As an aside, your logic on this point is pretty flimsy. If my opinion on being “born that way” should not carry much weight just because “tens of thousands of men and women who are openly homosexual claim to know they were somehow “different” from their earliest recollections,” how much weight should your opinion carry on the matter when hundreds of thousands of Utahns think as I do? To paraphrase you, who are you to say that they’re wrong? (especially in something which you claim is unprovable)

      To your theological question about God and homosexuality, since this is a public policy blog, I would refer you to a religious forum for an answer. And by the way, I find it interesting that you keep tying my reasoning to religious claims that I haven’t made, then label those claims as discriminatory and bigoted. That seems like further evidence that, in your mind, people with policy positions like mine are defined as “bigots,” regardless of that person’s reasoning and thinking, and that you have long since closed your mind to any other possibility. Your line in your last paragraph about “hiding behind” sincere religious beliefs only backs up this conclusion.

      And to your last point, the comparison with racial bigotry actually doesn’t make me uncomfortable at all because there is no valid comparison. It doesn’t take much thinking about and comparison of the plight of black slaves before the civil war (who were legally considered to be property rather than people) and the situations which some homosexuals face today (occasionally having to to find a new job or rent another apartment) to see how ridiculous that comparison is. All that comparison does is tell me that you haven’t given that point much thought or study.

      Derek Monson

  • Ken

    God does not make mistakes. He doesn’t put male spirits into female bodies or visa versa. The reasons some may feel gender conflict at an early age are not at all understood by any one in the scientific community and may, and probably do, involve numerous influences. But God does not make mistakes.

  • JBT

    I understand your thinking Derek much better than you do. You think you are superior to those in the gay community, and therefore are entitled to treat them as a sub-class and deny them the same equality that you enjoy. That is discrimination and bigotry notwithstanding all of the academic arguments that you employ to justify and rationalize your position.

    Discrimination is discrimination whether it is by race, gender, religion, ethnicity, or sexual orientation. Discrimination of any classification of human beings is the same as discrimination of any other class of human beings. There are no nuanced differences that make your discrimination different from any other. All discrimination is based upon fear.
    Homophobia is the term for this fear. Homophobe is the term for those who advocate discrimination against human beings in the LGBT community. If the shoe fits . . . . .

    Nice evasion of the God question. I knew you couldn’t (or wouldn’t) provide an answer. The entire LDS position against gays is based upon the false premise that they all have “chosen” that orientation and self identity. Once the church accepts the fact that some children come into this world having a natural attraction to the same sex then the whole house of cards the church has built in defense of its position comes tumbling down.

    • Griffin T. Kearns

      “I understand your thinking […] much better than you do.”

      I think this statement says all we need to know about you JBT.

    • Derek H Monson

      JBT,

      I don’t think that I am superior to those who decide to view themselves as “gay”…I simply disagree with them on their world view and public policy. You may think somehow that implies that I believe myself superior to them, but if that is the case what does it mean that you so obviously disagree with me?

      Again, rather than trying to respond to reasonable arguments in opposition to nondiscrimination ordinances, you continue to attack them and/or dismiss them. Why don’t you just engage civilly and constructively in this debate about public policy? What is the purpose of dismissing another’s reasoning as “discrimination based on fear,” other than to distract from legitimate points that you evidently (based on your various comments) do not want to talk about?

      The reason I didn’t answer your “God question,” as you call it, is that your previous comments suggested that you weren’t sincerely interested in engaging in an open-minded religious conversation, but were rather interested in trying to use my personal religious views as a talking point in painting me as a “homophobe” and a “bigot.” To me, there’s no value for the policy dialogue in trying to answer such uncivil questions, but in case you were sincere in your interest I tried to push you in a general direction (a religious forum) where you could find an answer to your question.

      In any case, your “evasion” comment has proven me correct. For instance, if you “knew” that I “couldn’t (or wouldn’t) provide an answer” to your question, then why did you even ask? Why didn’t you make it clear that you didn’t think I could answer the question, rather than trying to paint yourself as open-minded by saying “I really want an answer”? Here’s a helpful definition for you: “disingenuous – lacking in frankness, candor, or sincerity; falsely or hypocritically ingenuous; insincere.”

      The more you respond, JBT, the more it becomes transparent that you view people who oppose local nondiscrimination ordinances first as “homophobes” and “bigots.” You view the reasoning behind such a position – even when based on legitimate, broadly acknowledged legal (and social) realities – as “nonsense.” You also have an evident obsession with the Church of Jesus Christ of Latter-day Saints about these issues, which you compulsively bring up in your arguments. It is hard to tell whether you actually have a reasonable response to those whose position differs from yours, because you prefer to attack and smear rather than civilly engage.

  • JBT

    Griffin, all of your arguments are absolute nonsense—including the last one. Let’s have Derek answer honestly whether or not he believes he is superior to those who are homosexuals and see if I know what his thoughts are on this topic.

    Perhaps you would like to answer the same question as well. Discrimination consists of believing that an entire class of people are inferior in some respect and therefore should not be granted the same rights as everyone else. Where do you stand on this specific question? That is the core issue in this discussion, but it is the one that the religious right tap dances around with all of their academic intellectual rationalizations and justifications for treating gays differently. It is time for you folks to take a good honest look at yourselves as you vigorously defend discrimination.

    • Derek H Monson

      JBT,

      What you call “the core issue” isn’t an issue at all. I don’t know anyone who thinks homosexuals should be discriminated against because they are an “inferior class of people.”

      I do know people, however, who are concerned that nondiscrimination ordinances will create new protected classes, which are likely to mean the creation of special rights that only homosexuals and a few others get to enjoy. I also know others who are concerned that privately-owned, religiously-oriented businesses (e.g. a religious book store) could be tagged as “discriminators” under local nondiscrimination ordinances for legitimately pursuing the religious purpose of their business in who they hire as employees. I also know those who are concerned that these ordinances may tag businesses as “discriminators” for such common sense policies as requiring that men use the men’s room and not the women’s room, even if they perceive themselves to be a woman.

      Why do you dismiss the the reality-based thinking behind such concerns as “nonsense” and “academic intellectual rationalizations,” rather than actually just trying to reasonably address these issues? That is something I have a hard time understanding.

      Here’s another reality-based question for you: if the “core issue” to you is opposing discrimination, how can you support nondiscrimination ordinances that condone discrimination in some ways? For instance, under all of these nondiscrimination ordinances, religious organizations, businesses with fewer than 15 employees, and families renting out their basements can still discriminate against homosexuals.

      By supporting nondiscrimination ordinances that condone these forms of discrimination, are you also condoning that discrimination? By the way, I don’t necessarily think that the answer to that question is “yes,” but I also don’t think that by opposing nondiscrimination ordinances I am necessarily “vigorously defend[ing] discrimination,” which is a courtesy that you don’t seem willing to afford me, so I am interested to know what you think about these realities.

      Derek Monson

  • Duane

    JBT, you bring up the same old worn-out arguments I have addressed before. In God’s eyes, being gay is not really much different then being sexually promiscuous. We all have a sex drive and He has said that being sexually active in any way besides between married man and woman will be detrimental to our future opportunities. Here is what I told you last month:

    Duane says:
    December 21, 2011 at 1:06 pm

    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 says:
    December 21, 2011 at 3:51 pm

    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.
    Reply
    Duane says:
    January 4, 2012 at 10:56 am

    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.

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  • john awe

    Agreed. It is deviant CHOICE behavior or maybe a genetic flaw.