A User’s Guide To Free Expression And Bathroom Sanity

A User’s Guide To Free Expression And Bathroom Sanity

As the LGBT lobby moves beyond gay marriage into putting boys in girls’ locker rooms, here are four kinds of laws to keep an eye on.
Ryan T. Anderson
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Following the Supreme Court’s decision redefining marriage, LGBT activists shifted their focus to the “T” in LGBT and to eliminating any dissent on marriage. At the federal, state, and local levels, the cultural Left has proposed using government coercion—in the forms of fines, penalties, and regulation—to make all Americans accept a new orthodoxy on sexuality: Boys must be allowed unfettered access to girls’ bathrooms, locker rooms, and shower facilities; bakers must bake same-sex wedding cakes.

Meanwhile, big business and special interest lobbyists have denounced attempts to limit these initiatives. Republican governors such as Mike Pence of Indiana and Dennis Daugaard of South Dakota have caved to media hysterics and cultural cronyism. Pence watered down his state’s religious freedom law; Daugaard vetoed a bill that would have accommodated transgender students, but not allowed boys in girls’ bathrooms.

My recent book, “Truth Overruled: The Future of Marriage and Religious Freedom,” discusses these phenomena in detail. Here are the Cliff’s notes on four types of laws to keep an eye on.

1. Sexual Orientation and Gender Identity Laws

These laws have been used to penalize bakers, florists, photographers, and adoption agencies. There is no federal Sexual Orientation and Gender Identity (SOGI) law, and most states and cities don’t have them yet. But LGBT activists are pushing to pass them across the country.

The proposed Equality Act would add “sexual orientation” and “gender identity” to more or less every federal civil rights law that protects on the basis of race, expanding them beyond their current reach and explicitly reducing current religious liberty protections. If made law, the Equality Act would have government treat people who believe we are created male and female, and that male and female are created for each other, as if they were racists.

The Equality Act would have government treat people who believe we are created male and female, and that male and female are created for each other, as if they were racists.

SOGI laws also force schools, businesses, restaurants, and other places open to the public to allow biological males who identify as women into the ladies’ restrooms. This tramples private property rights, which would say whoever owns the bathroom should be able to set the bathroom policies, be they sex-specific, unisex, or something else. Government shouldn’t force owners to grant unfettered bathroom access based on gender identity, regardless of the safety, privacy, or modesty concerns of owners, employees, and patrons.

Thankfully, citizens are pushing back. When the Houston city council voted to impose a municipal SOGI law, Houstonians organized and collected more than enough signatures to put the issue to a vote of the people. In November, 61 percent of voters resoundingly rejected it. And don’t let the media tell you it’s a city of bigots. Houstonians have elected Annise Parker, a lesbian, as mayor three times. But they drew the line at SOGI and won despite threats of boycotts and retaliation from big business (which proved empty).

Earlier this year a proposed sexual orientation bill died in the Indiana statehouse, partly because its supporters couldn’t stop fighting over the specifics. Gender identity wasn’t specifically included in the bill, SB 344, which made the LGBT lobby unhappy. Moreover, in a bid to broaden support, the bill’s authors tacked on limited religious exemptions as a “compromise.” The prospect of any religious exemptions upset many in the LGBT lobby. In their view, no one should be free to follow his beliefs about marriage in public life if it violates LGBT dogma.

SOGI laws increase cultural tensions, further empower an already powerful special-interest lobby, and impose unjustly on people of many different faiths. At the end of the day, they are both unnecessary and a threat to religious freedom.

2. Bathroom Privacy and Accommodation Laws

SOGI laws are the problem. But what are some of the solutions? One answer is to protect privacy at the bathroom and accommodate transgender students. But LGBT activists don’t like this at all.

Their official policy is that boys who identify as girls should have unfettered access to girls’ bathrooms, locker rooms, and shower facilities. Anything less than full access to the bathroom and locker room of their choice is, they say, a transphobic denial of civil rights and equality. This extreme position is out of step with the majority of Americans, and utterly inconsiderate of the concerns of the non-transgendered community.

One answer is to protect privacy at the bathroom and accommodate transgender students. But LGBT activists don’t like this at all.

Earlier this year South Dakota crafted an even-handed policy respectful of everyone’s interests. Unfortunately, the governor caved to special interest hysterics. The South Dakota bill would have prevented biological males who identify as girls from using girls’ private facilities in public schools, but it also would have required local school officials to make reasonable accommodations for such students, such as providing access to single-occupancy facilities. A win-win arrangement for everyone, it would have protected all students’ privacy and safety and created new accommodations for transgender students.

Ask yourself: Why do we have gender-specific locker rooms in the first place? It’s because of biology, not because of “gender identity.” Separate facilities reflect the fact that men and women have bodily differences; they are designed to protect privacy related to our bodies. So the South Dakota bill continued the bathroom policy America has always had, while also requiring local schools to find reasonable accommodations for transgender students.

But LGBT activists accused attacked the state of “transphobia.” And big businesses threatened boycotts. As the bill reached the governor’s desk, the head of the Human Rights Campaign warned that “history will not treat kindly those who support this discriminatory measure.”

The nation is primed for yet another clash in the culture war—this time over school bathroom policy.

The Obama administration also wants to be on the Left side of history here. It claims that a 1972 civil rights law requires schools to allow unfettered bathroom and locker room access based on “gender identity.” In 2014, the U.S. Education Department’s Office for Civil Rights announced that Title IX—the 1972 law protecting the equal rights of women and girls in education—now required schools to allow boys who identify as girls into the girls’ bathroom. This unilateral reinterpretation of federal law cannot stand.

The nation is primed for yet another clash in the culture war—this time over school bathroom policy. The South Dakota legislature gave the entire United States an example of how to defuse controversy and craft principled public policy that creates good outcomes for everyone. It should have been signed into law.

We now need leaders to show courage and do the right thing: to stand up to the special interests and protect the rights and interests of all children.

3. Religious Freedom Restoration Acts

Historically, Americans have protected religious freedom by requiring the government to meet a burden of proof before it acts to substantially burden the free exercise of religion. This was the test that the Supreme Court applied under the First Amendment—up until 1990. When the Court turned away from that test, Congress voted in 1993 to reinstate it by passing the Religious Freedom Restoration Act (RFRA).

These commonsense laws place the onus on the government to justify its actions in burdening the free exercise of religion.

Championed by the ACLU and liberal senators Chuck Schumer and Ted Kennedy, it passed with 97 Senate votes and a unanimous voice vote in the House. President Bill Clinton signed it into law. RFRA bars government from substantially burdening religious exercise unless it can show a compelling interest to do so and does it through the least restrictive means possible.

Twenty-one states have implemented similar laws, and 11 more have constitutional religious liberty protections that state courts have interpreted to provide a similar level of protection. These commonsense laws place the onus on the government to justify its actions in burdening the free exercise of religion.

Over the last 20 years, RFRA-style laws have balanced the fundamental right to religious liberty with compelling government interests. They have protected Native Americans’ freedom to wear headdresses with eagle feathers, Sikhs’ freedom to wear religious head coverings in court, Muslim prisoners’ freedom to grow short beards, and Jewish inmates’ rights to kosher meals.

The federal RFRA protects against federal government violations of religious liberty; state RFRAs protect against state violations. Yet when Indiana proposed a near identical state version of RFRA last year, all hell broke loose. Similar hysterics are now erupting in Georgia and West Virginia over their RFRA proposals.

4. First Amendment Defense Acts

RFRAs create balancing tests that judges use. They protect religious exercise generally, then leave it to judges to determine if government has a compelling interest being pursued in a narrowly tailored way that justifies burdening the religious exercise in any particular case. But experience shows that ideologically driven judges can and do get it wrong. In cases where the risk of neglect or even hostility to the law by judges or government is acute, we can and should single out particular actions for protection and say government may never burden them.

The Supreme Court did not say that private schools, charities, businesses, or individuals must abandon their beliefs if they disagree, but some governments are acting as if it did.

We need both broad protection and specific protections. So, in addition to RFRA, Congress has passed a variety of laws that protect pro-life conscience. In Roe v. Wade the Supreme Court invented a right to an abortion. But after Roe Congress made clear that government cannot require a pro-life doctor or nurse to perform an abortion—that they, too, had rights that required specific protections from hostile judges and bureaucrats.

Likewise, in the Obergefell decision, the Supreme Court redefined marriage throughout America by mandating that governmental entities treat same-sex relationships as marriages. The Supreme Court did not say that private schools, charities, businesses, or individuals must abandon their beliefs if they disagree, but some governments are acting as if it did.

Indeed, there is no justification to force these entities to violate their beliefs about marriage. As Justice Anthony Kennedy noted, traditional beliefs are held “in good faith by reasonable and sincere people here and throughout the world.” Americans who believe that marriage is the union of husband and wife should continue to be free to live and work according to their convictions.

Now, state and federal legislatures should make it clear that no private person or institution should be forced to recognize or help celebrate a same-sex marriage—that is, that they have a right to believe—and live out—what they’ve always believed about marriage: that it’s the union of husband and wife.

Protecting minority rights after major social change is also a hallmark of American tolerance and pluralism.

The federal First Amendment Defense Act (FADA), and various state bills modeled on it, is a measured, reasonable, commonsense policy. It would ensure that no government agency discriminates against individuals or institutions for following their convictions about marriage as a man-woman union. For example, a government could not revoke their tax-exempt status or deny them government grants, contracts, accreditation, or licenses because of their beliefs. The bill protects freedom and pluralism in the wake of social change—embodying the best of American values.

Protecting minority rights after major social change is also a hallmark of American tolerance and pluralism. Yet as Georgia moves to enact a FADA, big business and special interests are attacking it.

This is yet another example of cultural cronyism. Businesses in Georgia were always free to embrace gay marriage—to bake wedding cakes for gay marriages and make floral arrangements for same-sex nuptials—and many do. But now activists want the government to force everyone in Georgia to do it. They’re threatening boycotts, travel bans, and relocations of businesses if the government doesn’t do as they wish.

They want to be free to operate in Georgia according to their values, but they don’t want small-business competitors to be free to operate according to theirs.

Big business—as represented by “individual corporate giants including Hilton Worldwide, Marriott and InterContinental Hotels Group,” the Metro Atlanta Chamber of Commerce, and the Georgia Hotel and Lodging Association—have all claimed the religious freedom bill would open the door to widespread discrimination.

But if every Hilton, Marriott, and InterContinental hotel in Georgia already hosts receptions for newlywed same-sex couples, why can’t Georgia protect the mom-and-pop bed-and-breakfast or local Knights of Columbus hall that has a different set of beliefs about marriage? This law doesn’t harm minority rights; it protects them in the aftermath of the Supreme Court’s redefinition of marriage.

The hypocrisy of big business lobbying against the law is astounding. They want to be free to operate in Georgia according to their values, but they don’t want small-business competitors to be free to operate according to theirs. If all of the major corporations are already in favor of gay marriage, then this religious freedom law poses no threat. It merely protects the rights of those who disagree.

What to Do Now

America is in a time of transition. Courts have redefined marriage, and beliefs about human sexuality are changing. During this time, it is critical to protect the right to disagree and the civil liberties of those who speak and act in accord with what Americans had always believed about marriage—that it is the union of husband and wife.

Good public policy is needed at the local, state, and federal levels to protect cherished American values. This means SOGI laws must be defeated. Bathroom privacy and accommodation laws should be enacted. And religious freedom should be protected—with RFRAs and FADAs.

These policies would help achieve civil peace amid disagreement, maintain pluralism, and protect the rights of all Americans, regardless of what faith they may practice.

Ryan T. Anderson, PhD, the William E. Simon senior research fellow in American Principles and Public Policy at The Heritage Foundation, is the author of "Truth Overruled: The Future of Marriage and Religious Freedom."

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