Nancy Pelosi made headlines last week stating that if Democrats reclaim the House of Representatives, a top agenda item will be to pass laws banning disagreement on LGBT issues.
Of course those aren’t the exact words she used, but when “sexual orientation” and “gender identity” are elevated to protected classes in antidiscrimination law, that’s the effect that the government policy has.
But not every disagreement is discrimination, and our law shouldn’t suppose otherwise.
The Heritage Foundation has long opposed the expansion of antidiscrimination laws to elevate “sexual orientation” and “gender identity” as protected classes. Where enacted, these laws—known as SOGI laws—are frequently used as swords to persecute people with unpopular beliefs, rather than as shields to protect people from unjust discrimination.
Part of the problem with these laws is that they treat reasonable actions as if discriminatory.
So, for example, if a baker creates custom wedding cakes for marriages, but won’t design or create them for same-sex unions, that’s considered “discrimination” on the basis of “sexual orientation.”
If a Catholic adoption agency works to find permanent homes for orphans where they’ll be raised by a married mom and dad, but won’t place children with two moms and no dad, or two dads and no mom, that’s considered “discrimination” on the basis of “sexual orientation.”
If a small business provides health insurance that covers a double mastectomy in the case of breast cancer, but not for women who want to transition and identify as men, that’s considered “discrimination” on the basis of “gender identity.”
If a school provides separate bathrooms and locker rooms for male and female students, but won’t let male students who identify as women into the female places, that’s considered “discrimination” on the basis of “gender identity.”
These reasonable policies on disputed questions should not be penalized by the government as if discriminatory.
Of course, business owners should respect the intrinsic dignity of all of their employees and customers. But this isn’t what laws on sexual orientation and gender identity entail.
Their threats to our freedoms unite civil libertarians concerned about free speech and religious liberty, free-market proponents concerned about freedom of contract and governmental overregulation, and social conservatives concerned about marriage and culture.
America is dedicated to protecting the freedoms guaranteed under the First Amendment to the Constitution, while respecting citizens’ equality before the law. None of these freedoms is absolute. Compelling governmental interests can at times trump fundamental civil liberties, but laws on sexual identity and gender identity do not pass this test.
Rather, they trample First Amendment rights and unnecessarily impinge on citizens’ right to run their local schools, charities, and businesses in ways consistent with their values. These laws do not protect equality before the law. Instead, they grant special privileges that are enforceable against private actors.
These laws could also have serious unintended consequences. These laws tend to be vague and overly broad, lacking clear definitions of what discrimination on the basis of “sexual orientation” and “gender identity” mean and what conduct can and cannot be penalized.
These laws would impose ruinous liability on innocent citizens for alleged “discrimination” based on subjective and unverifiable identities, not on objective traits. They would further increase government interference in markets, potentially discouraging economic growth and job creation.
By making “gender identity” a protected class, the government would force Americans to embrace transgender ideology in a variety of settings—with serious consequences for schoolhouses, locker rooms, hospitals, and workplace policies that undermine common sense.
Schools would have to redo their bathroom, locker room, and dorm room policies to allow students access based on their subjective identity, rather than their objective biology.
Hospitals would have to provide these procedures, and relevant physicians would have to perform them.
In essence, elevating “gender identity” to a protected class across our federal antidiscrimination laws could impose a nationwide transgender bathroom policy, a nationwide pronoun policy, and a nationwide sex-reassignment health care mandate.
Already the Department of Education is investigating a complaint from a 5-year-old girl who says she was sexually assaulted by a male classmate who was allowed access to the girls’ bathroom. Last year, Melody Wood ad I documented over 130 examples of men charged with using access to bathrooms, locker rooms, and showers to target women for voyeurism and sexual assault.
SOGI laws threaten the freedom of citizens, individually and in associations, to affirm their religious or moral convictions—convictions such as that marriage is the union of one man and one woman or that maleness and femaleness are objective biological realities to be valued and affirmed, not rejected or altered. Under these laws, acting on these beliefs in a charitable, educational, or commercial context could be actionable discrimination.
These laws are the ones that have been used to penalize bakers, florists, photographers, schools, and adoption agencies when they declined to act against their convictions concerning marriage and sexuality. They do not adequately protect religious liberty or freedom of speech.
In short, laws on sexual orientation and gender identity seek to regulate decisions that are best handled by private actors without government interference. They disregard the conscience and liberty of people of good will who happen not to share the government’s opinions about issues of marriage and sexuality based on a reasonable worldview, moral code, or religious faith. Accordingly, these laws risk becoming sources of social tension rather than unity.
Instead of treating disagreement as if it were discrimination, Americans of all walks of life must strive to peacefully coexist even when we don’t see eye to eye. How sad that Pelosi has already announced her intention to legislate division and punish disagreement.
Ryan T. Anderson, Ph.D., is the William E. Simon Senior Research Fellow in American Principles and Public Policy at The Heritage Foundation, where he researches and writes about marriage, bioethics, religious liberty and political philosophy. Anderson is the author of several books and his research has been cited by two U.S. Supreme Court justices in two separate cases. Read his Heritage research.
Editor's Note: This piece was originally published by The Daily Signal.