On Wednesday night, 43 Republican members of Congress joined the Democrats to vote for President Barack Obama’s transgender agenda.
Whereas last week Congress voted to reject this proposal—known as the Maloney Amendment—last night they voted to ratify Obama’s 2014 executive order barring federal contractors from what it describes as “discrimination” on the basis of “sexual orientation and gender identity” in their private employment policies.
And, of course, “discrimination” on the basis of “gender identity” can be something as simple as having a bathroom policy based on biological sex, not gender identity, as we learned last week from Obama’s transgender directives. And “discrimination” on the basis of “sexual orientation” can be something as reasonable as an adoption agency preferring married moms and dads for orphans, than other arrangements.
Indeed, in the past few weeks we’ve seen additional examples of what counts as “discrimination” on the basis of “gender identity.”
- The New York City Commission on Human Rights issued official legal guidance saying employers can be fined up to $250,000 for not addressing employees by the pronoun of their choice—including pronouns such as “ze” and “hir.” As UCLA law professor Eugene Volokh explains, this would require “employers and businesses to prevent [the use of “wrong” pronouns] by co-workers and patrons and not just by themselves or their own employees.”
- A public school district in Oregon paid a teacher $60,000 because colleagues declined to use the pronoun “they” to describe the teacher. The teacher, Leo Soell, does “not identify as male or female but rather transmasculine and genderqueer, or androgynous.” As Volokh explains: “Soell wants people to call Soell ‘they,’ and submitted a complaint to the school district objecting (in part) that other schoolteachers engaged in ‘harassment’ by, among other things, ‘refusing to call me by my correct name and gender to me or among themselves’ (emphasis added).”
- The 4th Circuit Court has said a Virginia school district must allow bathroom access based on “gender identity” not biology. The school district created a policy that says bathroom and locker room access is primarily based on biology, while also creating accommodations for transgender students: only biological girls can use the girls’ room, only biological boys can use the boys’ room, and any student can use one of the three single-occupancy bathrooms, which the school created specifically to accommodate transgender students. But the court said this commonsense policy was itself “discrimination” on the basis of “gender identity.”
Congress should not be ratifying Obama’s radical transgender agenda and imposing these outcomes on private employers just because they contract with the government.
All Americans should be free to contract with the government without penalty because of their reasonable beliefs about contentious issues. The federal government should not use government contracting to reshape civil society about controversial issues that have nothing to do with the federal contract at stake.
Obama’s executive order and the Maloney Amendment treat conscientious judgments about behavior as if they were invidious acts of discrimination akin to racism or sexism.
But sexual orientation and gender identity are not like race. Indeed, sexual orientation and gender identity are unclear, ambiguous terms. They can refer to voluntary behaviors as well as thoughts and inclinations, and it is reasonable for employers to make distinctions based on actions.
By contrast, “race” and “sex” clearly refer to traits, and in the overwhelming majority of cases, these traits (unlike voluntary behaviors) do not affect fitness for any job.
Congress tried to minimize the damage of the Maloney Amendment with two provisions last night. One provision, introduced by Rep. Joe Pitts, R-Pa., amended the Maloney Amendment to say that it couldn’t violate the U.S. Constitution. Another provision, the Byrne Amendment, attempted to attach existing religious liberty protections to the bill. Neither adequately protects against the damage of Maloney.
Liberal activist judges will do all they can to ensure that sexual orientation and gender identity policies will trump religious liberty protections.
Ryan T. Anderson, Ph.D., researches and writes about marriage and religious liberty as the William E. Simon senior research fellow in American Principles and Public Policy at The Heritage Foundation. He also focuses on justice and moral principles in economic thought, health care and education, and has expertise in bioethics and natural law theory. He's the author of the just-released book, Truth Overruled: The Future of Marriage and Religious Liberty."
Editor's Note: This piece was originally published by The Daily Signal.