The ordinance echoes parts of
state law in that it disallows discrimination in provision of services or
accommodations, hiring and applying personnel practices to hired employees, and
renting and selling of real estate on the basis of race, color, sex,
disability, age, ancestry, national origin, sexual orientation, gender
identity, or political or religious affiliations – but with sexual orientation
and gender identity added as they appear nowhere under state law. It exempts businesses
with fewer than eight employees, landlords of fewer than five units, and
religious organizations.
Immediately striking is the
intellectually slipshod way in which the protected classes are amalgamated.
Most of the list concerns immutable factors about human beings – your DNA makes
you of a certain race and sex and disability, your circumstances and life
history determine your disability, origin, ancestry, and age – but also
includes four behavioral attributes. While discrimination prohibition against
what people are is of a grave concern to government, because they are what they
are and there has to be an extraordinarily compelling reason to treat people
different on that basis, in allowing government to specify acceptable attitudes
and behavior in treating people differently on the basis of attitudes and
expression of them through behavior invites tyranny and must have a high
standard of proof to allow for it.
In the case of two of those
behaviors, political and religious affiliations, the U.S. Constitution already
protects them, with the First Amendment elevating them to very privileged
status that affords little ability for government to regulate these areas. Just
so: the very founding of the country emanated from intense belief in these
freedoms, and thusly are civil liberties. But there’s nothing close to this
imperative in the case of sexual orientation or gender identity, which involve
not liberties but a question of assumed civil rights.
As medical science has confirmed
consistently (despite the efforts of activists to find a “gay” gene, for
example), neither of these lifestyle choices are biologically determined. But
even if they were, what separates them from the rest of the list save the
protected First Amendment attitudes is their expression is contingent on
behavioral choices, where the individual has the innate choice to remove that
expression from his public life (for example, priests who take their vows
seriously do not behave sexually at all). So, there’s no compelling reason to
privilege this kind of expression with civil rights protections that concerns
traits not behaviors, putting it on par with the things about us we cannot
change about ourselves and therefore should not be treated differently as a
result and with the most fundamental expressive freedoms that we have.
Yet to sponsors Councilmen Oliver Jenkins and Jeff Everson, and
to the remainder of the Council who voted for this save Ron Webb, they
appear to say that government has the power, for example, to coerce employment
in a child care center of someone, as long as he shows he is capable of the job,
who openly advertises his membership in the North
American Man/Boy Love Association, whose unorthodox sexual orientation is
protected under the ordinance. Perhaps less dramatically, it could compel home
health agencies to send males who feel their gender identity is female to
female clients, disregarding entirely their clients’ sensibilities.
Further, in the works as a
morality police behind the ordinance is an unelected Human Relations Commission
that unlikely will be insulated from politics nor sufficiently limited in its
powers to prevent government overreach in this policy area. But it would appear
that Jenkins, Everson, et. al. have
no qualms about empowering government and privileged groups at the expense of
freedom generally.
Of course, the half-baked
thinking behind this we must recognize is a product not of fact and logic, but
of trendiness and panic. Some advocates of these kinds of laws argue that
without them, certain members of a “creative class” will be turned off from
wanting employment and living in a city. Yet this solution is waiting for a
problem; if this ever has happened, it happens rarely because almost all employers,
certainly among the larger, look not only at the bottom line first and foremost
when it comes to employment decisions where capability trumps lifestyle choices,
but also voluntarily state they don’t take these attitudinally-based behaviors
into account in personnel decisions.
Understand that these image
claims generally are self-fulfilling assertions of special interests seeking
political power. They believe if they rant long and hard about this presumed
disincentive, they can create the perception that anything less than this kind
of law shows actual hostility to those who practice alternative lifestyles,
making the prophecy of repelling these people come true and then presenting
this as evidence that a policy agenda that serves to privilege their interests
and empower them is needed to correct for this.
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