Sexual Orientation, Gender Identity, and Employment Law
by Paul McHugh and Gerard V. Bradley
The Employment Non-Discrimination Act would equate sexual orientation and gender identity, ambiguous and malleable concepts, with immutable features like race, color, and ethnicity as classes worthy of special legal protection.
In its recent marriage decisions, the Supreme Court wisely declined to hold--as did the lower court in one of the two cases--that "sexual orientation" was a constitutionally "suspect" class, comparable to classes of race, color, and ethnicity. Any legal rule that classifies people on a "suspect" basis is usually presumed to be invidiously discriminatory and thus unconstitutional.
Not surprisingly, a new law introduced in both houses of Congress would go where the Supreme Court chose not to tread. The Employment Non-Discrimination Act (ENDA) would prohibit any adverse treatment in matters of employment based on an individual's "actual or perceived sexual orientation or gender identity."
Enacting ENDA would be a grave mistake, and a disservice to the cause of equality.
ENDA defines sexual orientation as "homosexuality, heterosexuality, or bisexuality," and gender identity as "the gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual's designated sex at birth."
But social science research continues to show that sexual orientation, unlike race, color, and ethnicity, is neither a clearly defined concept nor an immutable characteristic of human beings. Basing federal employment law on a vaguely defined concept such as sexual orientation, especially when our courts have a wise precedent of limiting suspect classes to groups that have a clearly-defined shared characteristic, would undoubtedly cause problems for many well-meaning employers.
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