The Senate is expected to move forward soon on the Employment Non-Discrimination Act, or ENDA (S. 815). Since ENDA is terrible public policy, conservatives and libertarians are right to raise principled objections.
Part of the genius of the American system of government is our commitment to protecting the liberty and First Amendment freedoms of all citizens while respecting their equality before the law. But ENDA would create special privileges based on sexual orientation and gender identity, backed up by coercive enforcement.
ENDA would make it illegal for organizations with 15 or more employees to “fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual . . . because of such individual’s actual or perceived sexual orientation or gender identity.”
The bill defines “gender identity” as “the gender-related identity, appearance, or mannerisms . . . of an individual, with or without regard to the individual’s designated sex at birth.” In other words, it creates special rights for transgendered individuals — males who dress and act as females, and females who dress and act as males — and forbids employers from considering the consequences of such behavior in the workplace.
Of course, employers should respect the intrinsic dignity of all their employees. But ENDA is bad public policy. Its threats to our freedoms unite civil libertarians concerned about free speech and religious liberty, free marketers concerned about freedom of contract and government interference in the marketplace, and social conservatives concerned about marriage and culture:
Civil Liberties. ENDA would trample fundamental civil liberties and unnecessarily impinge on Americans’ right to run their businesses the way they choose. Individuals should be free to form associations and contracts according to their own values and should not be coerced into accepting the federal government’s set of values.
Free Markets. ENDA would further increase federal-government interference in labor markets, potentially discouraging job creation. It would not protect equality before the law, but create special privileges that are enforceable against private actors. It would impose liability on employers for alleged “discrimination” based on their employees’ subjective, self-disclosed identities and not on their objective traits.
Traditional Values. ENDA would further weaken the marriage culture and the ability of civil society to affirm that marriage is the union of a man and a woman, and that maleness and femaleness are not arbitrary constructs but objective ways of being human. The proposed law would treat these convictions as if they were bigotry.
ENDA also raises serious concerns regarding religious liberty. Although the bill provides some protections for religious liberty, they are inadequate and vaguely defined. They build on Title VII’s religious-liberty exemptions, which have been subject to repeated litigation with conflicting rulings by different courts.
Still, while it isn’t clear which religious organizations would be exempted from ENDA, it is clear that the bill would not exempt those who wish to run their businesses and other organizations in keeping with their moral or religious values.
It is hard to square ENDA’s basic purpose with any robust protection of citizens’ rights to speak freely of religious or moral convictions about marriage and sexuality. Indeed Americans are paying the price where their state or local governments have passed sexual-orientation and gender-identity statutes.
Some defenders of the bill reply by saying that sexual orientation and gender identity are just like race, and thus deserve similar federal protections. But this analogy is false. Jim Crow laws represented pervasive, onerous, and legally enshrined obstacles to employment based on race. America has no similar history of society-wide legal prohibitions on employment based on sexual orientation or gender identity. Racial integration might not have been forthcoming in those days; in the case of sexual orientation, however, voluntary actions and market forces have emerged that undermine the clamor for federal action. For example, 88 percent of Fortune 500 companies prohibit employment decisions based on sexual orientation.
What’s more, while race is usually readily apparent, the groups seeking special status in ENDA aren’t defined by objective characteristics. Sexual orientation and gender identity are commonly understood to be subjective, self-disclosed, and self-defined. And unlike race, sexual orientation and gender identity are usually understood to include behaviors. An employer’s decisions reasonably taking into account the behavior of employees are core personnel decisions, best left to businesses themselves — not the federal government.
ENDA could require employment policies that undermine common sense about a host of workplace conditions, especially with regard to issues surrounding gender identity and “transgendered” employees.
Issues of sex and gender identity are psychologically, morally, and politically fraught. But we all ought to agree that young children should be protected from having to sort through such questions before an age-appropriate introduction. ENDA, however, would prevent employers from protecting children from adult debates about sex and gender identity by barring employers from making certain decisions about transgendered employees.
Although ENDA includes some exemptions for religious education, it provides no protection for students in other schools who could be prematurely exposed to questions about sex and gender if, for example, a male teacher returned to school identifying as a woman.
Moreover, whatever the significance of gender identity, we can’t deny the relevance of biological sex in many contexts. An employer would be negligent to ignore the concerns of female employees about having to share bathrooms with a biological male who says he identifies as female. Failing to consider these repercussions raises a host of concerns about privacy rights. But ENDA would prevent taking these concerns into account.
Whether you care about civil liberties, market economies, traditional values, or all three — as this author does — it’s important to see that ENDA is bad public policy.
— Ryan T. Anderson is the William E. Simon Fellow at the Heritage Foundation and the editor of Public Discourse. He is the co-author, with Sherif Girgis and Robert George, of the book What Is Marriage? Man and Woman: A Defense.