How an anti-discrimination bill could end up discriminating

Washington D.C., Jul 27, 2015 / 23:04 pm

A bill in Congress that brands itself as fighting discrimination might end up doing the exact opposite, said legal experts last week.

"The whole thing is an overreach," said Ryan Anderson, the William E. Simon senior research fellow in American Principles and Public Policy at the Heritage Foundation.

The Equality Act has over 150 co-sponsors in the House and dozens of co-sponsors in the Senate, none of them Republican, thus making it unlikely to pass the GOP-controlled House and Senate.

Democratic presidential candidates Hillary Clinton and Martin O'Malley have endorsed the bill, and supporters herald it as the continuation of the historic Civil Rights Act.

The Equality Act would extend anti-discrimination protections for sexual orientation and gender identity, two phrases that critics argue are so broad that they can be abused by rejecting instances in which it is appropriate to recognize differences between sexes.

The proposed law would apply to not just employment, but other areas like housing, jury duty, credit, and education. It would also specify facility access for transgendered persons, such as access to male and female bathrooms.

In addition, it could endanger religious protections, particularly for those who believe marriage to be the union of one man and one woman. Under the Religious Freedom Restoration Act (RFRA), the government cannot impose a "substantial burden" on someone's religious belief unless it can prove that it is using the "least restrictive means" of furthering a "compelling government interest."

These standards have historically allowed for broad religious freedom protections. But that could change under the Equality Act – those who disagree with same-sex marriage could be viewed as "discriminating" against a same-sex couple, essentially stripping away RFRA protections to express this belief.

It is important to protect all persons from unjust discrimination, said Professor Robert Destro of The Catholic University of America's Columbus School of Law.

"There's a lot of good stuff in this bill," he told CNA. For example, it would prevent housing discrimination against a same-sex couple who meets the basic housing rental standards of cleanliness, peace, order, and paying their rent on time, he said, adding that there wouldn't be any real reason for a landlord to deny the housing in this case.

"Nobody argues that anybody shouldn't be treated in accordance with their equal human dignity," said Destro, who served for 16 years on the U.S. Commission on Civil Rights.

However, cases like this are few and far between, Anderson cautioned. "The type of discrimination that we all oppose really isn't happening that much."

The problem with the bill – and it is a big one – the commenters said, is that it is so vast and in many areas vague, that it could easily be used to stop the free exercise of religion of those who are morally opposed to the same-sex lifestyle.

For instance, Destro said, the bill prohibits things like exclusion, unfair treatment, and harassment. While this may sound good in theory, those subjects are so broad, "every one of those you could write a treatise on," he said.

The definition of something like "sexual harassment" could easily be stretched to include saying "something that makes someone feel bad," Destro said, like someone expressing their moral opposition to same-sex weddings or using the "wrong" pronoun to refer to a transgendered person.

"If you start looking at all this in light of traditional civil rights stuff, then the question is how far are they [the government] going to take this?" he said.

Anderson agreed. It is "unclear what constitutes 'discrimination'" under this bill, he said. For instance, a facility having only male and female bathrooms could be seen as discriminatory. A bakery choosing only to serve weddings between a man and a woman could be seen as discriminatory. And the bill as written does not appear to offer religious accommodations to for-profit businesses.

Basic moral disagreements with lifestyle could bring about discrimination lawsuits. "As night follows day, it will," Destro insisted.

Even if the bill tries to end public speech opposing the LGBT lifestyle, the important questions on the matter are not going to vanish from the public square, Destro continued. The bill will not end the diversity of opinion regarding same-sex marriage and like topics, he said.

Regarding education, which is one of the areas covered in the bill with anti-discrimination protections, the law only applies to public schools, not private schools. Public school administrators could still be faced with tough decisions, Anderson said.

For instance, if a fourth-grade teacher gets a sex-change operation over winter break, a principal could be faced with an employment discrimination lawsuit if he transfers the teacher because he deems it inappropriate for fourth graders to experience the idea of a teacher changing from one sex to another.  

The bill is ultimately a gambit for activists to push social change and not just "equality," Destro and Anderson said.

The Equal Opportunity Employment Commission, established around the time of the Civil Rights Act to enforce the law, will do its part to enforce the Equality Act as well if it becomes law, Destro warned.

The EEOC already signaled that it supports the basis of the bill in a recent ruling that Title VII of the Civil Rights Act prohibits not only employment discrimination on basis of sex, but also on basis of sexual orientation.

In the Supreme Court case Hosanna-Tabor v. EEOC, the commission had told a church that it couldn't promote its own mission norms through its employment decisions. The commission "said you have to act the way we want you to act," Destro explained. They will do their part to advance the new "social construct" of sexuality.

In building upon the advances of the Civil Rights Act, activists believe that opposition to same-sex marriage is akin to the old opposition against interracial marriage, Anderson said.

The bill will be used to "marginalize" defenders of traditional marriage and "treat them in law" like the "racists" that the Civil Rights Act was passed to counter, he added.