David Fowler President

July 14, 2009

A proposed ordinance (effectively a proposed law) has been filed with Metropolitan Government of Nashville and Davidson County that would prohibit discrimination in Metro government employment on the basis of sexual orientation and gender identity. It is critical that citizens understand the implications of this proposed ordinance and for them to communicate their position on the ordinance to Council Members.

The Ordinance, filed by Councilwoman Megan Barry, must have three readings, the first of which was July 21, 2009. The second reading will be August 6, and the third and final reading will be on August 18. So the window of opportunity to communicate your position with the Council is limited.

What Does the Ordinance Do, and Where Is the Issue Headed?

Substantively, at present, the proposed ordinance would only apply to Metro government’s employment practices. It would not apply to private employment practices, though the proposed ordinance will be added to the section of the Code that includes employment practices by private employers.

In time, it can be expected that an effort will be made to apply the language of this ordinance to private employers because:

1. Chris Sanders, President of the Tennessee Equality Project (TEP), the organization supporting adoption of the ordinance, has been quoted as saying it believes “everybody deserves a non-discrimination policy,” but that “starting” with Metro government “only makes sense.” It is only logical that at some point for the government to be asked why it is “turning a blind eye” to practices in the private sector that the government itself condemns.
   
   
2. It is public knowledge that TEP was behind a well organized effort in June 2009 to try to get Shelby County to adopt an ordinance like this. But that proposed ordinance did apply to private-sector employees. So we can see the breadth of ordinance that is eventually intended.
   
   
3. Strategically, Mr. Sanders is correct that an incremental approach “makes sense” because immediate application to the private sector would undoubtedly generate more opposition. That was the tactical mistake made when a sexual orientation ordinance was filed with Metro five years ago.

Do I Need to Be Involved Now?

Yes. For the political novice who thinks that they will wait to become engaged if and when the ordinance is expanded to include private-sector employers, do not underestimate the effect your lack of engagement now will have in that future debate.

Whenever any special rights or privileges are extended to any group, regardless of its defining characteristics, the politician will ask, “Why didn’t you object when the policy creating protection for (the defined group) was first adopted?” Failing to voice your position now will undermine your credibility until later. After all, the argument will be, “If the employment policy is good for the government, why is it not good for others?”

How Does This Affect Me?

This proposed ordinance will affect Nashville and Davidson County residents and businesses in many ways.

1. It will impinge on First Amendment religious liberty rights. Religious liberty rights have historically given way to civil rights and, as this would create a defined category of persons against whom “discrimination” is prohibited, religious liberty rights will give way here, too. “Chai Feldblum, a Georgetown University law professor and thoughtful gay activist who helps draft federal legislation related to sexual orientation, said that when push comes to shove and religious- and sexual-liberty conflict, ‘I’m having a hard time coming up with any case in which religious liberty should win.’ ” (The Los Angeles Times, October 27, 2008).
   
   
2. Because the terms “sexual orientation” and “gender identity” are undefined and subjective and “orientation” is fluid (some homosexuals change orientation more than once), it will invite litigation at the expense of Metro taxpayer.
   
   
3. The ordinance is itself discriminatory because it does not protect other people who are the object of employment discrimination. This is not about discrimination, it is about a political agenda. For example:
   
   
• A recent study from Yale University found that weight discrimination occurs in employment settings and daily interpersonal relationships as often as race discrimination—the top charge filed with the Equal Employment Opportunity Commission annually—and, in some cases, even more frequently than age or gender discrimination (Source: www.LegalWorkplace.com).
  
  
• According to the National Association of Short Statured Adults, “In our culture, there is a bias against short stature, and a glorification of those taller in stature. The result of this prejudice is discrimination against short people in a variety of areas, including politics, business, dating and sports.
  
  
• According to the Resource Center to Promote Acceptance, Dignity and Social Inclusion Associated with Mental Health (also known as the ADS Center), due in part to the negative attitudes associated with mental illnesses and discrimination, the unemployment rate among people with serious and persistent mental illnesses is 90%—far higher than the 50% unemployment rate among individuals with physical or sensorial disabilities. In other words, only 10% of individuals with persistent mental illnesses who want to work, and are able, are working.
  
  
4. Lawsuits alleging discrimination by Metro will be hard to defend since there is no objective means by which to refute one’s sexual orientation or gender identity.
   
   
5. Other employees who also have a right to a non-hostile workplace could begin to feel “put upon” if they do not openly embrace sexual orientation and gender identity, resulting in lawsuits against Metro.
   
   
6. Should the law be expanded to prohibit discrimination generally against this special class of employees, other issues will arise. Employee benefits that may be costly could be required. For example:
   
   
   • Massachusetts: The state health plan was required to pay for transsexual’s breast reconstruction surgery due to defective breast implants.
     
     
   • New York: A high school was required to pay for a teacher’s one year leave in order to have a sex-change operation. Now the teacher is seeking disability benefits.
     
     
   • Wisconsin: A biologically-male prisoner is suing the state to provide a sex-change operation. The state has been paying for pre-operative hormonal treatments.
     
     

It could also open bathrooms in Metro buildings to use by people of the opposite sex who “identify” as a sex other than their biological sex. There are lawsuits in Minnesota and, more recently, in Maine (fifth-grade student) on this very issue.

Isn’t This Basic Fairness Like Preventing Racial Discrimination?

Actually, no. Race compared to sexual orientation and gender identity are the not the same thing. Race is an immutable characteristic determined at conception and which does not entail any particular kinds of behaviors or actions. The same is not true about sexual orientation and gender identity.

The American Psychological Association’s (APA) statements on the issue are often cited for the proposition that sexual orientation is genetic or biological and that it is therefore harmful to suggest “reparative therapy” by which the person can stop engaging in homosexual behaviors. But the APA has begun to retreat from those positions. On the issue of homosexuality being genetic or inborn, the statement in the previous APA document said:

 

There is considerable recent evidence to suggest that biology, including genetic or inborn hormonal factors, play a significant role in a person's sexuality.

 

That statement was omitted from the current document and replaced with the following:

 

There is no consensus among scientists about the exact reasons that an individual develops a heterosexual, bisexual, gay or lesbian orientation. Although much research has examined the possible genetic, hormonal, developmental, social, and cultural influences on sexual orientation, no findings have emerged that permit scientists to conclude that sexual orientation is determined by any particular factor or factors. Many think that nature and nurture both play complex roles ... (emphasis added)

On the question of whether or not therapy can change sexual orientation, the former document offered a resounding “no”. However, the current document is much more nuanced and contains the following statement: “To date, there has been no scientifically adequate research to show that therapy (sometimes called reparative or conversion therapy) is safe or effective.” However, the APA has now at least acknowledged the right of the person desiring to change their sexual behavior to seek help to do so. The APA’s new pamphlet includes this key statement: “Mental health organizations call on their members to respect a person’s [client’s] right to self-determination.”

Isn’t Discrimination Bad?

No, it depends on your motive. We “discriminate” all the time when making a decision, and in some contexts having a “discriminating” eye or taste can be a positive thing, for example with artists and stylists and interior decorators. What makes discrimination “bad” is determined by the consideration used to draw a distinction between two or more sets of ideas, types of people, attitudes, and about anything you can think of. For example, in a very clearly understood context, we discriminate between a high school graduate and a medical school graduate when we pass a law to determine who should be allowed to prescribe drugs or perform surgeries. The question is whether the consideration involved is rationally related to the situation in which a decision is required and is it based on appropriate differences. The issue, of course, is over what differences are “appropriate” to take into consideration. Unless our society can agree on a transcendent source for determining what is and is not appropriate, right or wrong, then we have chosen to resolve such issues by majority vote. And in this context, if one is going to deny or disagree with the proposition that there a God-ordained distinction between the sexes and a purpose and context for the expression of sexual intimacy, then in our form of government the prevailing view in society should not be subjugated to that of the majority.