Why “Sexual Orientation” and “Gender Identity”
Should Never Be Specially Protected Categories
Under the Law
Peter Sprigg
With increasing fervor, LGBT (lesbian, gay, bisexual, and transgender) activists are urging local, state,
and federal governments to expand the protected categories under existing laws to bar“discrimination”—in areas such as employment, housing, and public accommodations—on the basis of“sexual orientation” and “gender identity.” These terms are also being inserted into the law in some
unexpected places. For convenience, we will refer to non-discrimination laws or other laws featuring
special protections based specifically on sexual orientation (SO) and gender identity (GI) as “SOGI” laws.
The fundamental rights guaranteed by the U.S. Constitution should and already do apply to all
Americans, including those who self-identify as lesbian, gay, bisexual, or transgender. However, thespecial protections found in SOGI laws:
1) are not justified in principle;2) are invasive and cause tangible harms; and3) are coercive and cannot be reconciled with religious liberty.
1. SOGI laws are not justified in principle.
Sexual orientation and gender identity are unlike other characteristics protected in nondiscrimination laws. The federal Civil Rights Act of 1964, for example, bars discrimination based on“race, color, national origin, sex, and religion.”1 The first four of these are clearly part of a person’s innate
identity, with “race, color,” and “sex” being biological factors identifiable at birth. A large part of thereason why discrimination on these bases is considered unjust is because these characteristics areindisputably inborn, involuntary, and immutable. Religion is different in that it is voluntary andinvolves both beliefs and behaviors. However, freedom of religion is explicitly protected by the First
Amendment to the U.S. Constitution—which is silent on issues of “sexual orientation” and “gender
identity.”“Sexual orientation” and “gender identity” are considerably more complex than these othercharacteristics and involve a combination of feelings, sense of identity, and outward behaviors.
The feelings and sense of identity (same-sex attraction or gender incongruity) may be involuntary, butthey have not been proven to be inborn or immutable (there is certainly no way to identify them atbirth).2 The behaviors, however (homosexual conduct or presenting oneself as something other than one’s
biological sex), are clearly a matter of choice, and those choices carry a substantial risk of harm to theLGBT individual and cost to society at large.3

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December 2018
Issue Brief IF18L01

SOGI laws increase government interference in the free market. They substitute the judgment ofgovernment officials in place of the judgment normally exercised by private businesses andorganizations regarding what qualities or characteristics are most relevant to a particular job and how
those private organizations wish to operate. The rights clearly protected by the Constitution do not place
any limits on the free actions of private individuals and organizations; on the contrary, they protect suchactions against interference by the government. And when a constitutional right is extended to a grouppreviously deprived of it, no one else suffers any reduction in their rights as a result.
Non-discrimination provisions such as SOGI laws, however, do not merely limit the government; they
coercively place a restriction upon the action of private entities (such as small businesses) in carrying out
their private activity. While there is a place for non-discrimination laws, the burden of proof in every
case must rest on those who seek to increase the number of categories or characteristics protected undersuch laws, since every such increase results in a corresponding decrease of freedom for someone else.
SOGI laws are unnecessary. One irony is that advocates of such laws place great emphasis on the large
number and percentage of corporations that already have internal policies prohibiting discrimination
based on sexual orientation and/or gender identity.4 That fact, however, undermines any suggestionthat such discrimination is endemic, or that government action is required to arrest the perceived
problem. A business that places unfounded prejudice ahead of legitimate qualifications will be punishedby market forces. For example, an employer who rejects better-qualified applicants for arbitrary andirrelevant reasons will end up with an inferior workforce that is less competent, productive, or effective
in meeting the needs of their customers—all of which will result in a decline in sales.
2. SOGI laws are invasive and cause tangible harms.
SOGI laws lead to costly and unnecessary lawsuits against businesses. They invite disgruntled
employees to sue for discrimination over a characteristic (in the case of sexual orientation) which is noteven visible and of which the employer may have been unaware. In the case of public employers, suchlaws at the local and state level have led to large settlements being paid at taxpayers’ expense.5
Disgruntled customers have sued businesses in the wedding industry under such laws for declining toparticipate in same-sex “weddings” (even when the business made clear that they would serve
customers who identify as homosexual in other ways that would not involve celebration of theirhomosexual partnership).6
Gender identity laws violate the privacy of others. Such laws allow biological males (who claim to befemale) to access private spaces like showers, locker rooms, and bathrooms designated for women,allowing them to be nude or in various states of undress even if they have never altered their bodies
through gender reassignment surgery. This could be, and has been, very disturbing to those (especiallysexual assault victims,7 or residents of battered women’s shelters) who are coerced into situations where
they are exposed to, or find their own bodies exposed before, such individuals. In one school, a girl chose
to wear her gym clothes under regular clothes all day rather than undress in front of a biological male;8in another, there is current litigation concerning the sexual assault of a five-year-old girl by a biologicalmale in the school’s girls’ bathroom.9 Such laws could be exploited by a “peeping tom,” a rapist, or apedophile as a way to gain access to women and girls in a vulnerable situation.10 Such privacy concerns
can also arise for employees of a business governed by the law—such as a women’s spa that was sued
because workers did not feel comfortable waxing the male genitalia of a customer who identifies as
female.11

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SOGI laws limit access to needed social services by effectively driving out faith-based providers.
These laws have been used in several states and localities to shut down faith-based adoption agencies. In
Illinois alone, nearly 3,000 children were displaced when this happened.12 Grants offered through theViolence Against Women Act have a SOGI provision that dictates the hiring practices of institutions that
get grants to help battered women. Because this provision violates the conscience of religious
institutions, they are unable to provide assistance desperately needed by battered women.13
SOGI laws could mandate the employment of persons who identify as homosexual or transgender ininappropriate occupations. Sexual conduct and gender can be relevant to employment. Under such
legislation, for example, employers in education and childcare would be required to hire teachers who
openly identify as LGBT, even if they consider them inappropriate role models for children and youth.
3. SOGI laws are coercive and cannot be reconciled with religious liberty.
SOGI laws force some businesses to violate their moral and religious convictions. These include
businesses which provide products, services, or catering for weddings or groups and businesses which
provide dating services. Under employment provisions of such laws, they could be forced to hire those
who identify as homosexual, and under the public accommodations provisions they could be forced toparticipate in the celebration of same-sex “weddings,” even though homosexual behavior and treatingsame-sex unions as marriages are expressly contrary to their religious convictions.14 They could also
force a medical professional to provide services in violation of his or her conscience, such as artificial
reproductive technology for same-sex couples or cross-sex hormones for those who identify astransgender.15
SOGI laws prepare the way for discrimination against religious beliefs. The more entrenched thatSOGI laws become in our culture, the more people who hold traditional values will be forced to conceal
their views—or face punishment for expressing them. This can happen even if the employee’s views are
expressed outside of work,16 and when no reference is made to sexual orientation or gender identity.17
Religious exemptions do not adequately protect people of faith. While such laws sometimes contain orare paired with “religious exemptions” (for example, to prevent churches from being forced to hirehomosexual clergy), these may not protect the conscience rights of individual Christians, Jews, Muslims,
and others. Profit-making corporations may not qualify for the exemption, so Christian bookstores,
religious publishing houses, and religious television and radio stations could all be forced tocompromise their faith-based principles. Approaches like the Religious Freedom Restoration Act(RFRA), on the other hand, leave ambiguity as to which religious practices are protected, and could beinterpreted narrowly by courts.18
SOGI laws “legislate morality”—the “morality” of the sexual revolution. They send the message that it
is morally wrong to disapprove of homosexual or transgender conduct. For such laws to be endorsed bycitizens who believe that it is morally wrong to engage in homosexual or transgender conduct is a logicalcontradiction. The law is a teacher, and it is fundamentally unloving to “teach” our neighbors that they
will find happiness by engaging in unnatural sexual conduct or by adopting a gender identity
inconsistent with their biology and genetics.
Peter Sprigg is Senior Fellow for Policy Studies at Family Research Council in Washington, D.C.

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1 Civil Rights Act of 1964, Public Law 88-352 (July 2, 1964), 78 Stat. 241,https://www.govinfo.gov/content/pkg/STATUTE-78/pdf/STATUTE-78-Pg241.pdf.
2 For example, Lisa Diamond—a scholar who self-identifies as lesbian—has written that “arguments based on theimmutability of sexual orientation are unscientific.” Lisa M. Diamond & Clifford J. Rosky, “Scrutinizing
Immutability: Research on Sexual Orientation and U.S. Legal Advocacy for Sexual Minorities,” The Journal of Sex
Research, 53:4-5 (March 17, 2016), 363,
https://dc.law.utah.edu/cgi/viewcontent.cgi?article=1023&context=scholarship.
3 For example, see: “Gay and Bisexual Men’s Health: Sexually Transmitted Diseases,” Centers for Disease Control
and Prevention, March 9, 2016, accessed December 17, 2018, https://www.cdc.gov/msmhealth/STD.htm; Tonia
Poteat, “Top 10 Things Lesbians Should discuss with Their Healthcare Provider,” GLMA, May 2012, accessed
December 18, 2018, http://www.glma.org/index.cfm?fuseaction=Page.viewPage&pageID=691; Karen Kaplan,“Being transgender in America may be hazardous to your health, study shows,” Los Angeles Times, May 30, 2017,
accessed December 18, 2018,
http://www.latimes.com/science/sciencenow/la-sci-sn-transgender-health-disparities-20170530-htmlstory.html.
4 Corporate Equality Index 2018, Human Rights Campaign Foundation (2017);
https://www.hrc.org/campaigns/corporate-equality-index.
5 “The ENDA Litigation Nightmare,” Issue Brief, Family Research Council, November 2013,https://downloads.frc.org/EF/EF13K10.pdf.
6 Alexandra McPhee, “Religious Liberty and the ‘Wedding Vendor’ Cases,” Family Research Council, November
2018, https://downloads.frc.org/EF/EF16L23.pdf.
7 Kaeley Triller Haver, “A Rape Survivor Speaks Out About Transgender Bathrooms,” The Federalist, November 23,
2015, accessed December 18, 2018, http://thefederalist.com/2015/11/23/a-rape-survivor-speaks-out-abouttransgender-bathrooms/.
8 Students and Parents for Privacy v. U.S. Department of Education, et al., Complaint (N.D. Ill., May 4, 2016), 22,
http://www.adfmedia.org/files/SPPcomplaint.pdf.
9 Alliance Defending Freedom, “US opens investigation into sexual assault of minor child in Georgia, violation of
Title IX,” press release, October 03, 2018, http://www.adfmedia.org/News/PRDetail/99205?search=1.
10 “Bathroom Incidents,” Issue Brief, Family Research Council, April 2017,https://downloads.frc.org/EF/EF16F27.pdf.
11 Matt McDonald, “Transgender Customer Demanded ‘Full Brazilian’ From Beauty Salon Under Massachusetts
Gender Identity Law,” NewBostonPost, September 27, 2018, accessed December 18, 2018,https://newbostonpost.com/2018/09/27/transgender-customer-demanded-full-brazilian-from-beauty-salonunder-massachusetts-gender-identity-law/.
12 Travis Weber, “The Child Welfare Provider Inclusion Act: Ensuring a Free Marketplace of Adoption Providers,”
Issue Brief, Family Research Council, April 2018, https://downloads.frc.org/EF/EF18D31.pdf.
13 “Frequently Asked Questions: Nondiscrimination Grant Condition in the Violence Against Women
Reauthorization Act of 2013,” U.S. Department of Justice, Office of Justice Programs, Office for Civil Rights, April 9,
2014, https://www.justice.gov/sites/default/files/ovw/legacy/2014/06/20/faqs-ngc-vawa.pdf.
14 McPhee, op. cit.
15 E.g., Jennifer Riley, “Christian Fertility Doctors, Lesbian Settle Suit Over Treatment,” The Christian Post, October
2, 2009, accessed December 18, 2018, https://www.christianpost.com/news/christian-fertility-doctors-lesbiansettle-treatment-lawsuit.html.
16 Katie Leslie, “Former Atlanta fire chief files federal lawsuit against Reed, city,” The Atlanta Journal-Constitution,
February 20, 2015, accessed December 18, 2018, https://www.myajc.com/news/former-atlanta-fire-chief-filesfederal-lawsuit-against-reed-city/fzALMp5sYZp4JwxxCMO7IP/.
17 “Suit to decide workplace ‘hate speech,’” The Washington Times, June 10, 2007, accessed December 18, 2018,https://www.washingtontimes.com/news/2007/jun/10/20070610-111445-6957r/.
18 Peter Sprigg, “Can There Be ‘Compromise’ Between Sexual Orientation/Gender Identity Non-Discrimination
Laws and Religious Liberty Protections?” Issue Brief, Family Research Council, February 2016,
https://downloads.frc.org/EF/EF16B15.pdf.

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