Tuesday, September 8, 2009

Arguments Against ENDA (Part I)

No one in the national media is yet focusing much on the upcoming Employment Non-Discrimination Act, and neither the proponents on the left nor the opponents on the rights have said much either. But there is much to be said, and sooner or later, the war of words will begin.

The most common argument is that ENDA's terms are not sufficiently well-defined, leading some to be concerned that it could protect pedophiles and others whose sexuality is criminal in nature.

This argument assumes that "sexual orientation," as defined in ENDA, is similar to more ambiguous phrases, such as "sexual preference" or "sexual lifestyle." However, the term used, "sexual orientation," does not include sexuality of a criminal nature.

To some extent, arguing that "sexual orientation" includes any type of "sexual preference" is a bit like arguing that laws protecting against race discrimination will include race car drivers.

Such concerns are hinted at in this portion of a letter from Representative Howard Coble, 6th District of North Carolina:

This bill has become mired in controversy over definitions of discrimination and the individuals covered. As a result, the bill was not enacted and expired at the conclusion of the 110th Congress.

We remained concerned that creating new constitutionally protected classes will undermind (sic) existing equal protection laws. We are also concerned that forcing employees to pursue discrimination claims in feeral (sic) court could actually prevent many possible victims from asserting their rights. Finally, many employers who support nondiscrimination policies oppose ENDA because it will create new uncertain legal liabilities.

And here's a letter from Congressman Bill Young of Florida:

From: Congressman Bill Young
Sent: Wednesday, July 8, 2009 4:54:50 PM
Subject: Re: Please Co-Sponsor the Employment Non-Discrimination Act

July 8, 2009

...While I feel that discrimination in the workplace should not be tolerated in any capacity, I was unable to support this particular version of ENDA because it failed to define the term "perceived" sexual orientation, nor does the Civil Rights Act of 1964 include or define that term, and that the inclusion of a vague term would have led to uncertainty and increased litigation.

"Homosexuality" Does Not Refer to Pedophiles

In referring to "controversy over definitions and the individuals covered," these Congressmen are alluding to the arguments made by such organizations as The Concerned Women for America, who have argued that: "While pedophiles are neither expressly included in nor excluded from ENDA's provisions, they will have a conceivable argument for special protection as homosexuals who merely prefer younger partners."

This argument cannot hold in the face of the definitions found in the bill in Section 3(a)(9):

(9) SEXUAL ORIENTATION- The term `sexual orientation' means homosexuality, heterosexuality, or bisexuality.

Thus, "sexual orientation" is specifically defined in a way that precludes the argument that it can refer to "sexual preference for children." The terms "homosexuality, heterosexuality or bisexuality" are quite well-defined, and are quite distinct from vague phrases like "sexual preference," or "sexual lifestyle."

Here's the Oxford English Dictionary definition of homosexual as a noun: "A person who has a sexual propensity for his or her own sex; esp. one whose sexual desires are directed wholly or largely towards people of the same sex."

It is interesting in that connection that a couple of lines down, the definition includes the following: "homosexual panic n. orig. Psychol. (chiefly among men) uncontrollable fear or anxiety as a reaction to one's own or another's homosexuality."

The American Heritage Dictionary has a similar definition: " Of, relating to, or having a sexual orientation to persons of the same sex."

This reminds me of the flap over the Americans With Disabilities Act in the late 80s. Senator Jesse Helms was afraid that prohibiting discrimination against people with disabilities might include homosexuals and pedophiles and transsexuals. They were going to hold up the entire bill to help people with disabilities because of this homosexual panic.

Helms made them include the following provisions:

Sec. 12211. Definitions

(a) Homosexuality and bisexuality
For purposes of the definition of "disability" in section
2102(2) of this title, homosexuality and bisexuality are not
impairments and as such are not disabilities under this chapter.
(b) Certain conditions
Under this chapter, the term "disability" shall not include -
(1) transvestism, transsexualism, pedophilia, exhibitionism,
voyeurism, gender identity disorders not resulting from physical
impairments, or other sexual behavior disorders;
(2) compulsive gambling, kleptomania, or pyromania; or
(3) psychoactive substance use disorders resulting from current
illegal use of drugs.

Was "homosexuality" further defined in the ADA? No. There was no concern at that time over whether it was clear enough what "homosexuality" meant. In fact, none of the terms, including "gender identity," were defined there. It was clear enough to Senator Jesse Helms what these things meant then. It should be clear enough now.

In addition, Senator Helm's language clearly distinguished homosexuality and pedophilia as separate categories, as both were included separately. If they were the same thing, then they wouldn't need to be stated separately.

What Is Pedophilia?

Pedophilia refers to those who are sexually aroused by the thought of sex with prepubescent children, a reference to children under 13 years of age. (See ICD Section F65.4). This is a concept quite different from that of sexual orientation, the desire for a romantic partner of a particular sex. Researchers have been unable to identify the prevalence of pedophilia in the US population. A 2007 article in the Mayo Clinic Proceedings (82(4):457-471) implies that unwanted sexual touching of young females is twice as prevalent as among young males.

Beyond the social and moral, there is a particularly important legal distinction between pedophilia and homosexuality - the first is illegal and the second is not. Much could be written on this topic, but someone who engages in pedophilia is committing the crime of sexual assault, whereas being gay with another consensual adult is not criminal behavior.

ENDA only prohibits sexual orientation job discrimination if it is based on one's sexual orientation, but does not do so if the employer bases it on one's predilection for a criminal behavior, such as sex with children. The same would hold true whether the employee's pedophilia extended to children of the same sex, opposite sex or both.

Is It Possible To Interpret "Perceived" Sexual Orientation As Extending to Pedophiles? Answer: No.

The "perceived" language that Rep. Young fears is so undefined and will result in a flood of lawsuits is similar to the "regarded as" language used in the Americans With Disabilities Act. Many courts have looked at such provisions before, many times, in both disability statutes and state civil rights statutes, and never found the meaning of "homosexual" to be vague or ambiguous. The "perceived" language is also used in many state statutes that prohibit sexual orientation discrimination, such as California. The intent of this language is to prohibit a defense based on the argument that the employee is not, in fact, gay, and therefore, no anti-gay discrimination could have taken place. The "perception" must be one that refers to the person's "sexual orientation," not their "sexual preferences" for children, goats, or whatever. It makes no sense to argue that "sexual orientation" discrimination includes pedophiles.

The Supreme Court of Washington addressed this issue a few years ago in the context of same sex marriage, with one of the Justices lambasting "the astonishing and scientifically faulty notion that homosexuals are often pedophiles." In that 2006 case, Andersen v. King County, Justice Bridge criticized unscientific testimony from the "Family Council," relaying abstracts of biased studies purporting to find that a high percentage of gay men are pedophiles. As Justice Bridge stated, "In fact, this corrosive stereotype has been debunked by noted experts in the field of psychology and in courts alike," citing Marc E. Elovitz, Adoption by Lesbian and Gay People: The Use and Mis-Use of Social Science Research, 2 DUKE J. GENDER L. & POL'Y 207, 216-17 & n.55 (1995) (citing Gregory M. Herek, Myths About Sexual Orientation: A Lawyer's Guide to Social Science Research, 1 LAW & SEXUALITY 133, 156 (1991)). She also quoted the New Jersey Supreme Court, which found, in Dale v. Boy Scouts of Am., 160 N.J. 562, 734 A.2d 1196, 1243 (1999), rev'd on other grounds, 530 U.S. 640, 120 S.Ct. 2446, 147 L.Ed.2d 554 (2000), that "The myth that a homosexual male is more likely than a heterosexual male to molest children has been demolished."

Will There Be A Flood of Lawsuits? Answer: No

Will there be a flood of lawsuits? Looking to one of the largest states with the strongest protection from sexual orientation job discrimination, the experience of California shows that there is not likely to be a flood of lawsuits.

How many sexual orientation lawsuits did California have last year? 821 for a population of 37 million. Let's see, that's 1 case for every 46,000 people. It was also 4% of the 18,785 discrimination cases in California that year. More like a trickle than a flood, seems to me. There's no flood of sexual orientation discrimination litigation gonna bust out over America, overwhelming the EEOC and carrying hapless Congressmembers downstream.

Congressman Coble's letter contains the following surprising phrase: "We are also concerned that forcing employees to pursue discrimination claims in feeral [sic] court could actually prevent many possible victims from asserting their rights."

This would seem to imply that conservative Congressman Coble is quite concernced about gay employees, and the possibility that a federal civil rights bill is going to prevent them from raising civil rights claims in state court? But there have been both federal and state civil rights laws on the books since the 1960s, and no one's been precluded from raising civil rights cases in state courts. There's no provision in ENDA that would seem to force employees to use federal courts if there is a parallel state law.

The important thing to remember is that states have had similar laws for decades with neither of these concerns coming to the fore.

These arguments are set out in more formal language, with citations, in the Senate Report 107-341 - EMPLOYMENT NON-DISCRIMINATION ACT OF 2001.

There are a number of other objections to ENDA that will be covered in future posts.