Dr. Jillian T. Weiss

Arguments Against ENDA: Are We Ready? (Part I)

Filed By Dr. Jillian T. Weiss | September 07, 2009 11:30 AM | comments

Filed in: Marriage Equality, Politics, Politics
Tags: employment discrimination, Employment Non-Discrimination Act, ENDA

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 weary war of words will begin. Just as in the health care debate, the war will not be fought by massed armies on the field of rationality, but as hand-to-hand combat in the streets of demagoguery.

judo.jpgOur opponents will not fight fair, and it's going to hurt very personally when they start hurling arguments designed to appeal to the lowest of raw prejudices. Are we ready?

As I tell my moot court students, the only way to win against a bigger opponent is to know their argument better than they do and use it against them. It's like verbal judo. You have to know what their counterargument is going to be, and have a counter-counterargument.

Ready? We'll take it in easy stages. Let's start with the most common argument.

"Sexual Orientation" Could Include Pedophiles!

This argument makes me want to scream and throw up my hands. However, I have found that screaming and throwing up my hands tends to reduce the effectiveness of my argument, so I don't do it any more. Besides, this is an argument with amazing staying power.

Silly as it may seem, we will need to patiently explain it to people over and over and over again: homosexuality is different from pedophilia. That means they are not the same.

The pedophilia argument only makes sense if you substitute other words for the actual words in ENDA, like changing "sexual orientation" to "sexual preference" or "sexual lifestyle." Or if you think that homosexuality means pedophilia. Words do count in the law, and if you don't know what they mean, then, yes, you can make them mean anything. Which is how "living wills" became "death panels." Life and death, you know, two sides of the same coin, eh? Ah, actually, not.

Seriously, this is like arguing that laws protecting against race discrimination will include race car drivers.

But lest you think that only very silly people can raise such concerns, here's part 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" Is A Secret Reference to "Homosexuals"

Okay, let's take this one at a time - controversy over definitions and the individuals covered. What are these Congressmen talking about? Well, they're trying to say something without quite saying it because it's so silly.

They're talking about pedophiles. They are unwilling to actually state the argument they're talking about, because it is so ridiculous. Here's some who are willing to state it outright, The Concerned Women for America: "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."

Ah, no, actually, there is no such conceivable argument, not one that makes any sense.

Here is what the bill actually says in Section 3(a)(9):

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

Nothing in there about sexual preference for children. No goats or other beasts of the field. The terms "homosexuality, heterosexuality or bisexuality" are quite well-defined, and are quite distinct from vague phrases like "sexual preference," "sexual lifestyle," or "sexual goatstyle." Does it include pedophiles? Does it involve bestiality or marrying your uncle? Does it include people who like dirty pictures? No, no, and no.

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."

Interesting 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."

Oh, what's that? You don't like them foreign dictionaries? How about the American Heritage Dictionary? What could be more American than that? It says: " 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 ridiculous 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.

You Are Feeling Sleeeepy

These arguments make so little sense that it's confusing even to hear them being made, let alone try to think them through. It's like those trick questions where all the answers are wrong, and the answer is actually "none of the above," but you naturally assume that one of the answers written out for you must be correct.

Congressman Coble's letter contains the following nonsensical 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."

So let's see if I understand this. You're saying you're terribly worried about gay employees, and think a federal civil rights bill is going to prevent those poor souls 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. Where are you getting this idea that ENDA will prevent protection of LGBT employees? Maybe....you're confused?

I think actually that is it. They are confused. They don't get it, and they don't want to get it, and they're going to keep raising the specter of loose definitions that include pedophiles and a flood of litigation about what "sexual orientation" means when, in fact, states have had similar laws for decades with neither of these concerns coming even close to a glimmer of daylight.

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

There are more frightening memes that the right-wing is seizing upon in arguing against ENDA. There are not only pedophiles and goats and your uncles, but also...gasp...gender identity! No decoding needed there - transsexuals may be scarier than pedophiles. And they're coming to take away your Bibles! But I think we've covered enough for today.

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Will ENDA have religious exemptions that allow religious institutions or institutions funded by religious organizations to fire GLBT's on the sole basis of religion-driven prejudice?

I believe I made a similar question concerning Tobia Wolff's post mentioning the "unfortunate" court ruling, but you may have missed it.

Good question. The answer to that is yes and no. ENDA specifically states that it has a religious exemption exactly the same as that found in Title VII, the current federal employment discrimination law.

Under Title VII's religious exemption, generally speaking, if religion is a bona fide occupational qualification in the job description then a church may discriminate on that basis. An example of this is the employment of a priest or minister. However, the term "bona fide occupational qualification" has a specific legal meaning, and it is not easy to claim if the employer is not a church. The actual legal interpretation of this is more complex, but I think this will do for starters.

I will be discussing this in detail in Part II of this post.

Neat! I look forward to your next piece; I really love these contributions that dabble in law with an approach that does not exclude non-law students ;).

Thanks for these pieces, Jillian.

With apologies for veering slightly off-topic, my main argument against ENDA, coming from someone within the community, is that it is a narrow piece of legislation. Focusing on private employment made sense in the early 1990s when there was a hope that a narrowly drafted bill could move through Congress quickly. In 2009 when (supposedly) we have a receptive Congress and President, shouldn't we be looking at legislation that prohibits discrimination in housing, credit, contracts, public accommmodations, public programs, and public employment as well?

We aren't looking at that legislation because it won't pass. Most of these protections will come in steps, and if we don't make it past this first hurdle, the other ones won't even be presented to us.

Either way, it's better than nothing and there's no sign that it'll stop the push instead of give it more momentum.

What evidence is there of that?

It made sense to narrow it down in the past, in the hope that this would enable some compromise.

The compromise never happened.

I see no evidence of a single vote depending on NOT including all the protections in Title VII. Can you give me a single example of a congresscritter whose vote might change to opposition if not just employment was included? Just one?

Those who oppose the bill will do so not matter what is included or excluded, no matter how much it is narrowed. Their opposition is not based on rational argument.

Those who are in favour of the bill will not change the minds if, say, it includes provisions for prohibiting discrimination in supplying credit. By narrowing the bill in areas other than religious exemptions - and those indeed may be important - we have not gained a single vote. Not one. Not in over a decade. The opposition is even more intransigent now than before. It's just smaller.

I agree, but that's not really the question. The question is whether we should oppose what's before us now or fight for more in its stead. I don't think that we really have the option to reject this bill now, because it is the hurdle that's presented itself to us and we will look fairly incompetent if we can't even get this passed.

I don't see how passing this bill works against later expansions of it. Sure, we can say that it shouldn't pass because it isn't big as it used to be, but where does that leave us? I'm trying to see a way that "Oh, we'll just let the first LGBT civil rights bill die a natural death in the House" ends in anything other than us being written off.

We know one thing for sure: adding protections against gender identity discrimination in public accommodations will bring the battle over public restrooms to the forefront and we will hear little else besides the terror of men in dresses attacking little girls in bathrooms everywhere. We're going to face that argument enough just dealing with issues regarding restroom and locker room access in the workplace without adding public restrooms to the debate.

In a perfect world, my preference would be include housing, credit, and public accommodations in ENDA too. But, given all the water that gone under this bridge already, I think we need to settle for what we can get now. (And I hate it that that's exactly the same argument that HRC and Barney Frank made in 2007 when they removed "gender identity" from ENDA, but there it is.)

You say, Abby, that the argument used in 2007 to exclude trans people is the same as that being used now. With all due respect, the two arguments are quite different. The argument in 2007 was that we should exclude a marginalized group, that has often been excluded in the past, in order to gain protection for the majority of the community. The trade-off is protection for some people, and not other people. The argument in 2009 is that we should be content with gaining protection within the field of employment for the whole community, with the hopes of gaining protection in other fields like housing and public accommodations. The trade-off is protection within a limited field, but it's not a case of some winning and some losing. These are two very different arguments. In the first, we throw transgender people under the bus, whereas in the second, no one is thrown under the bus.

We love the demagoguery, but how much of it will be real? Should we be responding to the pedophilia argument with logic?

something tells me that the deathers aren't really thinking logically, and that they don't really have the power the media think they do, either, that the real problem in Congress is that too many reps and Senators have been bought off and they don't want to bite the hand that feeds them.

Either way, this could become and issue and I hope anyone who's on TV to defend the ENDA will just say, "No, pedophilia isn't in the ENDA. It says that sexual orientation is just homosexuality, bisexuality, and heterosexuality, and any claims that it says more are just lies."

I think that's the 10 second version of this post... :)

While I think that using logic against a person who would bring these arguments to bear is whizzing in the wind at that particular person there is always the third parties who are audience to the exchange and who may be swayed by logic and real information.

I agree with Rob -- and with Alex. We won't convince the fundies. But our centrist allies must see that our arguments are clear and persuasive, and that the smear campaign has no traction. It's not a matter of convincing our radical right enemies; it's a matter of demonstrating convincingly to our centrist allies where the moral high ground lies. Otherwise, they will get weak-kneed and go all dizzy on us, mumbling about being too busy with health care to bring ENDA to a vote.

Thanks for the article Jillian, I like your approach of methodically dealing with the arguments, however outlandish they may be. So often, you get these red herrings thrown out there and the jaw just drops because you don't know where to start. But hey, I support the troops, so this shouldn't be a problem.

Regrettably I agree that a broader LGBT civil rights bill will not pass. It does not appear to be the case that the American public does not support extending to non-discrimination protection to housing (as opposed to just private employment). Fivethirtyeight.com provides a good run down here of the numbers on several LGBT issues: http://www.fivethirtyeight.com/2009/06/gay-rights-are-popular-in-many.html Instead the reason why it won't pass appears to be a failure of our major national organizations to advocate for a broader bill -- switch strategies when it became clear that ENDA was not going anywhere. Similarly, ordinary LGBT people weren't telling our organizations we want a better bill.

Marriage equality and whether ENDA would be trans-inclusive have dominated the discussion for the last five years. I hope a good civil rights bill won't be a casualty of that excessive focus.

As for momentum, the lag time between the passage of the 1964 Civil Rights Act and Title IX was eight years. The ADA has yet to be amended to prohibit discrimination in credit on the basis of disability. I have little faith that Congress will revisit LGBT civil rights again soon after passing ENDA -- which was part of the rationale for making it transinclusive to begin with rather than fixing the statute later.

The first question we have to ask is what meets the needs of the LGBT communities. The current ENDA doesn’t come close. We need a constitutional amendment that provides for tough penalties for bigots who discriminate in the areas of access to private and public medical and social services, credit, housing, hiring, job retention and union organizing. Confiscatory fines and jail time have to be a mandatory part of the package. The law should make it easy, not difficult, to prove discrimination and should specifically include all classes of people affected by discrimination including women, minorities and trade unionists in addition to our communities. It should specifically include the cults in its enforcement provisions.

A similar approach is needed for the hate crimes bill.

We need a strategy based on our needs, not on some quibbling reformist approach that combines a minimalist law with accommodationist tactics. The approach of trimming our expectations to indulge Congressional bigots and those who pander to them is self defeating. It leads nowhere except deeper into the morass of dependence on Democrats and Republicans. In 2007 it led to passage of an absurdly minimalist bill under the direction of quislings like Barney Frank.

If reformists are willing to play the role of a beaten spouse going back for more abuse we should abandon them to their fate and look out for ourselves with a strategy based on what we need, which is not a few crumbs, and on a mass action battle plan instead of that perennial loser – lobbying.

The fight for what we need will never be led by people who front for the Democrats and Republicans. They put the needs of their parties and subservience to them above the needs of the movement. If they’re content supporting the party that gave us DOMA and DADT they’ll accept whatever crumbs are offered by Obama, Pelosi and Reid.

“I am not interested in picking up crumbs of compassion thrown from the table of someone who considers himself my master. I want the full menu of rights.”
African nationalist Desmond Tutu

Go for it. Just keep your hands clear of Hume's guillotine.

I will to the same extent that the ANC did.

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

What? You'll still be subjected to discrimination if you are pansexual or asexual?

I had a close friend (ex-girlfriend) working toward her Masters of Social Work degree and she spent time on a pedophile group list, like a Yahoo Group. They allowed her to observe and ask questions because she of the degree she was studying for. Of course, none used their real names.

Pedophiles themselves, for the most part, don't even consider their sexual orientation when it comes to children, even if they specifically like children of one sex over the other. Their primary focus is the age groups they are attracted to, like 7-12 boys and girls, or just boys, or just girls, 10-13, and so on. My friend told me that when their sexual orientation comes into play, it has to do with the sex of the adult they are attracted to.

I've heard that too, Monica. And I think it's appropriate to point out that a child doesn't have a sexual orientation either - they're too young for sex! So if a man molests a little girl, that doesn't make him "straight," it makes him a child molester.

True. If you go back to the priest scandals in the Catholic Church, the church was saying that the priests who only molested boys were gay and then blamed their problems on gay priests. But, they wouldn't say that the priests who only molested girls were straight. They needed a scapegoat for sticking their heads in the sand and ignoring the fact that all the priest who molested children were nothing more than pedophiles, which had nothing to do with sexual orientation. The current Pope has his head deeper in the sand.

Angela Brightfeather | September 8, 2009 3:23 PM


Great stuff that you have here and in your other posts. Thanks so much from an old activist who has been fighting this fight for more than 20 years now. It's a pleasure to read your arguments and I wish you were around back then.

I am wondering if there is a "rap sheet" that is easy to be read and can be given to representatives who will debate ENDA negatively using all points you have and will be making. Something that boils these points down so that a dummy can get the gist of it and so that if they continue to oppose it, they will have to come up with better answers like "I just don't like it" or, "I'll get killed in the next election."

One of the most damaging points I have heard from a local "Dem" Congressman is from my area in a personal interview I had with him earlier last year. Congressman Bob Etheridge, D. NC said to me that he has a conservative "farming and agricultural" base and that he would probably lose a lot of it if he voted for an inclusive ENDA. He aso noted that he would probably vote the way that Barney Frank was voting (which by the way, may be more certain, but still was a lousy excuse for a way of worming out of voting for an inclusive bill back then).

How do I give him something short and to the point that he can use against people in that base that come after him?