Challenges to True Fairness for All: How SOGI Laws Are Unlike Civil Liberties and Other Nondiscrimination Laws and How to Craft Better Policy and Get Nondiscrimination Laws Right

Abstract

Policies intended to allow LGBT people to meet their needs are being used illiberally to impose a new sexual orthodoxy on the nation. But as the US Supreme Court in its same-sex marriage decision, Obergefell v. Hodges, acknowledged, doing so is unjustified: the conviction that male and female are created for each other “has been held — and continues to be held — in good faith by reasonable and sincere people here and throughout the world.” Indeed, the Supreme Court added, many “reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here.” Any fair policy will take heed of this point; it will address minorities’ precise needs without punishing reasonable citizens for acting on decent and honorable beliefs.

Policy makers should not assume that the best solution is to add “four words and a comma” — that is, to insert “sexual orientation, gender identity” into existing laws crafted to respond to racism and sexism, as nearly all SOGI laws do. To avoid punishing good actions and interactions, lawmakers must carefully specify what constitutes “discrimination” on the basis of “sexual orientation” and “gender identity.” Lawmakers should carefully consider which entities to regulate to keep burdens to a minimum. And they should accommodate freedoms of speech, association, and religious liberty. On each of these dimensions, our law has treated racial discrimination differently from sex-based discrimination.

This chapter highlights and analogizes these differences. It shows what constitutes discrimination and how to distinguish invidious discrimination from fair distinctions and reasonable disagreements.

After considering analogies to race and sex, this chapter considers analogies to religion, addressing two common charges against skeptics of SOGI laws: that it is inconsistent to support religious liberty but not SOGI nondiscrimination policies and that it is inconsistent to support bans on religious discrimination but not SOGI discrimination. As to the first objection, constraints on the government for the sake of all citizens can be appropriate in a way that coercion of some citizens for the sake of others may not. As to the second, religion nondiscrimination laws have not been used to impose a religious orthodoxy on the nation, but SOGI nondiscrimination laws are being used to impose a sexual orthodoxy, despite reasonable differences on questions such as the nature of marriage.

Anti-gay and anti-transgender bigotry exists and should be condemned. But support for marriage as the union of husband and wife is not antigay. The conviction that sex is a biological reality is not anti-transgender. Just as Americans have combatted sexism without treating pro-life medicine as sexist, any public policy necessary to help people who identify as LGBT meet their needs should be crafted to respect the consciences of reasonable people who act on good-faith beliefs about marriage and gender identity. Not every disagreement is discrimination. And our laws should not suppose otherwise.