2013 Legislature: Testimony opposing antidiscrimination amendments (SB 262)

Testimony given by Paul Mero Thursday, March 7, before the Senate Economic Development and Workforce Services Committee regarding Employment and Housing Antidiscrimination Amendments (SB 262):

Thank you, Mr. Chairman, for the opportunity to add a voice to this hearing. In considering what I might share, I realized that this issue of nondiscrimination stopped being about policy at some point and is now simply a public relations issue. The legislative politics of nondiscrimination has more twists and turns than a daytime soap opera. But we’re policy people at Sutherland and it’s difficult for us to advise legislators on public relations.

After five or six consecutive years of hearing this bill – and every year the bill is rejected – I’m sure proponents of the bill might be a little frustrated with this process. But when you can’t win on its merits, all that’s left is an appeal to emotion. All that’s left is to ask legislators, “Pretty please? – just let it be heard, just give me a Republican sponsor, can we have a floor vote, pretty please?”

Whenever I speak around the state I always defend the integrity of this Legislature. One of the things I’ve always admired about the Utah Legislature – in fact, a quality I believe is exceptional in American politics today – is its consistent focus on policy and its reluctance to be ultimately swayed by fads, protests, threats, overblown emotions and public relations.

SB 262 is a solution looking for a problem. But there is no problem. And the solution is an effrontery to our laws, rights and community. This idea of nondiscrimination based on sexual orientation and gender identity is the first time in my memory that this Legislature is being asked to pass a law about what a person thinks. Up to now, Utah law has dealt with what people do. Now the Legislature is being asked to legislate penalties for what a person is accused of thinking – that is, penalizing everyone except supporters of this bill and entities who lobby for exemptions from its harm. This isn’t a “gay rights” bill; it’s a big government special rights bill.

Not that it matters in a public relations campaign, but Sutherland Institute opposes SB 262 and asks members of this committee to let it die its ignominious death right here.

Thank you, Mr. Chairman.


Questions for the bill sponsor of SB 262:

On lines 88 -91:

  • How does an agency investigator objectively evaluate “an individual’s internal sense of gender”?
  • During an investigative proceeding, how much weight should an investigator give “an individual’s self-identification” as an objective and lawful “evidence of gender identity”?
  • Within the definition of gender identity, how is an employer not at the mercy of the accuser?
  • Does gender identity include a person happy with their current identity or would they need to change genders to conform to the definition in this bill? And if the definition includes a person happy with themselves, as well as those who desire change, doesn’t this definition then include every human being?


On lines 124 -125:

  • In the definition of sexual orientation, does “heterosexual, homosexual or bisexual” regard behavior or feelings or both?
  • If the definition of sexual orientation includes someone’s feelings or romantic attractions, how is the law to consider someone’s feelings?
  • How are we to determine under the law someone’s “perceived orientation”? Is there a way to read someone’s mind to justly understand a mental act of discrimination?
  • In light of “actual orientation,” is there replicable scientific or medical evidence that any human being is born heterosexual, homosexual or bisexual? In other words, is there any replicable scientific or medical evidence that a person is born with same-sex attractions or born with a need to engage in particular forms of sexual behavior?


On lines 205-206:

  • How does the commission “minimize or eliminate discrimination in employment” regarding sexual orientation or gender identity? What does that process within a private company look like when the commission attempts to do that?


On lines 259-269:

  • In making appointments to the Antidiscrimination and Labor Advisory Council, and in considering someone’s sexual orientation, is there a person who might be excluded from the Council if the definition of sexual orientation is restricted to heterosexual, homosexual or bisexual?
  • Related to the previous question, how many sexual orientations are there in the Diagnostic and Statistical Manual of Mental Disorders (DSM)?


On lines 314-327:

  • Would the “otherwise qualified” provision protect a male employee wearing a dress and lipstick to work?


On lines 328-337:

  • “Moral character” falls outside of the protections of “otherwise qualified.” But where does homosexuality and bisexuality fall within the definition of “moral character”?


On line 514:

  • At what places of employment in Utah is sexual orientation and gender identity “a bona fide occupational qualification”?


On lines 539-543:

  • How do the “self-identification” and “perceived [as]” legal presumptions in the definitions of gender identity and sexual orientation, respectively, avoid the proscription against “preferential treatment” under the law?


On lines 577-583:

  • How would an employer identify someone’s gender identity that “is not sincerely held”?
  • How would an employee “provide evidence” of a sincerely held belief versus a belief not sincerely held?


On lines 603-606:

  • In the procedure for an aggrieved person to file a claim, how can that claim be objectively and independently verified?