View Full Version : ENDA: A Government Identity Crisis

11-22-2013, 04:06 PM
ENDA: A Government Identity Crisis

ENDA — the Employment Non-Discrimination Act of 2013 is probably one of the most Orwellian pieces of legislation ever to receive bipartisan approval in the Senate. It claims to prohibit hiring and employment discrimination on the basis of sexual orientation or gender identity. But it would more likely result in massive expansion of government power by opening up a huge can of legal worms most directly related to “gender identity.” Gender identity is an ambiguous term that relates to people’s perceptions and feelings. By adding it to the list of categories in anti-discrimination law, ENDA combines threat of punishment with vague language that is wide open to interpretation. This is a classic recipe for tyranny.

Consider first ENDA’s definition of “gender identity”:

The term ‘gender identity’ means 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.

The issue of definition here is significant. Let’s look separately at the terms “gender” and “gender identity.” Gender identity does not simply refer to male or female. It’s all about perceptions and behaviors and feelings and one’s “internal, personal sense” of being male or female, or, in some cases, “other.” It’s also reactive against any social or cultural norms that assume people are either one sex or the other.

But the ENDA legislation does not define “gender” for us at all. Neither does the reference glossary of the Gay and Lesbian Alliance against Defamation (GLAAD), a strong supporter of ENDA, or some other advocacy groups who support ENDA. According to Merriam-Webster, “gender” (beyond the grammar definition) is defined as “the behavioral, cultural, or psychological traits typically associated with one sex.” Other dictionaries define gender simply as “sex,” as in “the female gender.”

GLAAD’s definition of gender identity remains fairly tame (for now):

Gender Identity: One’s internal, personal sense of being a man or a woman (or a boy or a girl). For transgender people, their birth-assigned sex and their own internal sense of gender identity do not match.

GLAAD’s definition appears on the surface to accept a dualistic outlook on gender identity — that people identify as either male or female. But the second phrase is incomplete, because it repeats the term “gender identity” without ever explaining exactly what it means.

The definition of gender identity in Wikipedia, which is attributed to the 7th edition of GLAAD’s Media Advisory Guide and has received widespread acceptance among other advocacy groups is this: “self-identification as woman, man, neither, or both.”

According to the American Psychological Association, gender identity is one’s identification as “male, female, or transgender.” And in its definition of transgender, the APA states: “gender identity refers to a person’s internal sense of being male, female, or something else.” So here we see in the definitions the nearly complete divorce between gender (male or female) and gender identity (male or female, both male and female, or “something else,” something completely different). Does Congress have any hint of the chaos it sows with the prospect of forcing employers to deal with the mysteries of “something else,” whatever that might be?

There are five clues to the Orwellian nature of ENDA’s language.

ENDA’s use of the word “perceived”

A key phrase repeated over a dozen times in ENDA legislation is that discrimination is prohibited on the basis of “an individual’s actual or perceived sexual orientation or gender identity.” We need to pay attention.

First we ought to ask: what is meant by the word “perceived”? Perceived by whom? The syntax in the legislation is not clear. It could be the beholder or employer doing the perceiving. But the use of the possessive case suggests it is the individual’s perceived sexual orientation or gender identity. Either way, there is dangerous ambiguity in ENDA’s use of language that sets up a legal framework that singles out — either for punishment or special protection — personal perceptions.

Any law that’s set up to protect or punish perceptions is conducive to abuse.

When a plaintiff swears that an employer’s perceptions are malicious, how does the employer defend himself? Is accusing an employer of “perceptions” enough to insist on punitive damages? On the other hand, if the law purports to protect our self-perceptions, then we’re still on a shaky foundation. Self-perceptions can change over time and can be based on many different factors. There are over seven billion self-perceptions on the planet, each one of them complex. It doesn’t really matter how many of them feel a need or an all-encompassing right to present to the world as a different gender. Feelings change. One’s sense of identity can change. Any law that’s set up to protect or punish perceptions is suspect and very conducive to abuse.

Thus ENDA offers boundless possibilities for thought policing in the workplace and society at large. And it opens the door to endless litigation against employers. If ever there was an efficient way for government to impose itself on any entity daring to operate a free enterprise, ENDA leads the way. In fact, ENDA’s potential for government heavy-handedness over the private sector is strong enough that one might reasonably conclude that ENDA has very little to do with “protecting” anybody. It’s nothing but a scheme to expand big government, which, by the way, seems to be having an identity crisis of its own.....

11-22-2013, 06:14 PM
Religion is self identified, self declared, and a matter of perception. In the US, we have self identified Christians who claim to have been discriminated against for "my Christian beliefs" and in many cases are accusing other Christians (perhaps even more demonstrably so) of being the ones doing the discriminating. Any guess what? Sometimes they are right. I am not kidding you when I tell you that as a child in Salisbury MD "nice people" did not attend certain churches and the people who did attend those churches didn't get asked to join most of the clubs.