President-elect Donald Trump will begin his presidency as a uniter, having managed to bring conservatives and progressives together on the subject of discrimination in public accommodations. These are businesses and facilities open to the public, such as bakeries, florist shops, professional photographers, and fashion designers. It turns out that conservative conniptions intended to assert a religious right to refuse services for same-sex marriages have provided progressive fashion designers with a rationale to vow never to design clothes for First Lady-elect Melania Trump and Trump’s daughter, Ivanka.
Sadly, this new unity is not going to make government any smaller because it reveals that federal and most state civil rights laws are a couple of protected categories short: sexual orientation and political affiliation.
However, David French at National Review Online, tries to make hay out of this new unity to promote discrimination against lesbians and gays in public accommodations by trying to turn them into an idea and provide protection to people with poor boundaries, while wrongly claiming gays already are a protected class (boldface mine):
Consider the parallels [between conservative and progressive rationales for discriminating in public accommodations]. Photographers, bakers, and florists are using their individual artistic talents not just to document but to celebrate an event. Many of them enter their profession to express their own views about “beauty” and do their work to glorify God. Their art is their best tool for “communicating their world vision.”
But all too many on the Left just don’t care. All that matters is that they refused to use their artistic talents for a gay couple. And aren’t LGBT people protected from discrimination? But wait, aren’t Melania and Ivanka also women? And aren’t women a protected class under nondiscrimination law also? You begin to see the silliness of the argument. Yes, Melania and Ivanka are women, but that’s incidental and irrelevant compared with their political identity. The designers aren’t refusing to dress the Trumps because of their gender but because of their presumed worldview. Similarly, when a baker or florist works with gay men and women all the time and just draws the line when they’re asked to help celebrate a same-sex wedding, they’re objecting to a particular idea, not refusing service based on status. If a black baker refuses to bake a Confederate-flag cake, is he refusing because of the race of the customer or the symbolism of the flag?
First of all, French is saying that people must be allowed to approve of their customers and may refuse to serve them if they don’t. If their objections are religious, they may pick and choose the tenets they enforce. Thus, they are to be allowed to refuse service on the basis of one behavior their religion condemns, same-sex marriage, while serving others, for example, fornicators, adulterers, and the divorced. Their refusal is a declaration of belief in the inequality of lesbians and gays and their right to impose it. This gives their religion the force of civil law by protecting them when they refuse to provide goods or services for same-sex marriages. Religion trumps the rights of lesbians and gays to equality. On top of that, the assertion that bakers, photographers, and fashion designers are participating in an event and providing approval of it just seems like poor boundaries. They’re doing their jobs and getting money in exchange. That is not participating.
About the hypothetical black baker and Confederate flag: it is not a pertinent analogy because the baker’s only legal objections are political, not religious. The pertinent idea of same-sex marriage is whether religions can determine the right to equality of lesbians and gays. So the question is whether religions get the backing of the government to declare lesbians and gays unequal and therefore unworthy of service.
French also asks rhetorically, “And aren’t LGBT people protected from discrimination?” No, LGBT people are NOT protected from discrimination throughout the United States.
Regarding discrimination on the basis of sexual orientation, lesbians and gays have only one federally protected unalienable (can’t be voted away by majority rule) right: same-sex marriage, due to the 2015 Supreme Court decision in Obergefell v. Hodges. Lesbians and gays have zero federal civil rights to public accommodations, employment, and housing. Lesbians, gays, bisexuals, and transgenders only have civil rights, subject to majority rule, to public accommodations, employment, and housing, at the state level.
It is important to understand that “LGBT” describes four very different groups with different claims to protection from discrimination. Lesbians, gays and bisexuals are grouped together under sexual orientation. Transgenderism in discrimination laws is euphemistically called “gender identity” or “gender identity, gender expression.” (“Gender identity” refers to the belief that one is the opposite sex to one’s biological sex. “Gender expression” means dressing or appearing like stereotypes of the opposite sex.) It is appropriate that sexual orientation and gender identity are treated differently in discrimination laws because transgenderism is a mental illness (often a constellation of various mental illnesses), while sexual orientation is not.
One example of why transgender people must be treated differently in anti-discrimination laws is that their quest for the right to public accommodations would allow intact men to expose their genitals in women’s locker rooms. (Did you know that most transgender fake women aka men keep their male genitals? And are sexually attracted to women?) Transgenders consider it prejudice for women to object to naked men exposing their genitals in spaces where they also must disrobe.
To digress for a moment, the legal remedy for this conflict that conservatives have overlooked so far is to pass constitutional amendments and laws defining sex to be both determined at conception and immutable, and to require that males must use male restrooms, etc., regardless of how they are dressed, while banning women who pretend to be men, or dress like men, from women’s spaces since they are indistinguishable from men.
Returning to the lack of discrimination protections, the following 28 states allow discrimination against lesbians, gays, bisexuals, and transgender people in public accommodations, employment, and housing: Alabama, Alaska, Arizona, Arkansas, Florida, Georgia, Kansas, Idaho, Indiana, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Virginia, West Virginia, Wyoming.
The following 17 states and Washington, D.C., ban discrimination on the basis of sexual orientation and gender identity in public accommodations, employment, and housing: California, Colorado, Connecticut, Delaware, Hawaii, Iowa, Illinois, Maine, Maryland, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington.
- In 2015, Utah provided protection from discrimination in employment and housing on the basis of sexual orientation and gender identity. Discrimination in public accommodations on the basis of sexual orientation and gender identity is still lawful in Utah.
- Massachusetts bans discrimination on the basis of sexual orientation and gender identity in employment and housing. It also bans discrimination on the basis of sexual orientation in public accommodations. Discrimination in public accommodations on the basis of gender identity is permitted.
- New Hampshire, New York, and Wisconsin ban discrimination on the basis of sexual orientation in public accommodations, employment, and housing. They permit discrimination on the basis of gender identity in public accommodations and housing.
Here’s a summary tally of the states with discrimination protections:
- 22 states and Washington, D.C., ban discrimination in employment and housing on the basis of sexual orientation (lesbians, gays, bisexuals)
- 21 states and Washington, D.C., ban discrimination in public accommodations on the basis of sexual orientation (22 minus Utah = 21)
- 17 states and Washington, D.C., ban discrimination in public accommodations on the basis of gender identity (the same 17 listed above)
- 18 states and Washington, D.C., ban discrimination in both employment and housing on the basis of gender identity (17 plus Massachusetts = 18)
- 23 states and Washington, D.C., ban discrimination in employment on the basis of gender identity (17 plus New Hampshire, New York, Wisconsin, Massachusetts, Utah = 23).
In other words, most lesbians and gays live in states where they have no protection from discrimination in public accommodations, employment, and housing. So if they exercise their federal right to marry, they can be refused all the goods and services for their ceremony and reception, and then be fired and thrown out of their homes by their landlord.
Religion was correctly rejected as the argument for denying the right to same-sex marriage. It ought not prevail when it comes to denying access to public accommodations, employment, and housing on the basis of sexual orientation. It is not needed at all to justify laws limiting the rights of transgenders. Conservatives arguing that your religion allows you to refuse services to express your disapproval now find that progressives are happy to claim the same argument transposed to political affiliation. However, when would-be totalitarians embrace your argument that purported to protect a liberty, it is the opposite of vindication and instead reveals its true nature. When it comes to sexual orientation and political affiliation, personal or religious approval has nothing to do with the right to public accommodations, employment, or housing.
Bake the cake. Design the dress.
Hit the tip jar: If I can raise at least $3,115 by Monday, January 16, I will use it to attend the Creating Change Conference being held by the National Gay and Lesbian Task Force in Philadelphia from January 18-22 and report on the truth about the transgender agenda. You need to know what transgenders really think about women, their drive to recruit children, and their success in silencing any opposition. There are now eight states considering bathroom bills to protect the privacy of women. In March or April, the Supreme Court will hear oral arguments on a case involving transgender bathroom access, G.G. v. Gloucester School Board.
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