Don’t ENDAnger Your Liberties in
by Robert A. J.
Oct. 23, 2007
For a print copy use the PDF
“Employment Non-Discrimination Act of 2007” (ENDA), which could be more
appropriately entitled an “Employment Discrimination Act against
Christians,” will be voted on Wednesday or Thursday of this week (Oct.
24-25) in the House of Representatives (H.R. 3685).
There is one thing that is essential to know about this bill: If you are
someone who has any reservations about homosexual practice, the passage
of this bill will seriously “ENDAnger” your freedoms in the workplace
like no other issue. It is urgent that you call your Representative in
the U.S. Congress (and now or soon your Senators) to express your strong
opposition to this bill (at 202-224-3121,
Don’t let the
proponents of the bill fool you. Despite a “religious exemption clause”
your liberties in the workplace are endangered. Here are three main
points that stand out.
The bill will virtually codify
you as a bigot so far as the federal government is concerned if you
oppose homosexual practice on moral grounds.
The biggest fallout from the bill is the establishment
of “sexual orientation” (defined as “homosexuality, heterosexuality,
or bisexuality”) as a specially protected category of federal
law. As sure as night follows day, this will be the proverbial foot
in the door by proponents of homosexual practice that will lead,
eventually but irrevocably, to “gay marriage” (mandated by the
U.S. Supreme Court), a nationally enforced
indoctrination of children into the homosexualist agenda in schools,
and the criminalizing of opposition to homosexual practice at the
national level. This is the way that such
actions have been advanced on the state level. Courts use so-called
anti-discrimination laws regarding “sexual orientation” as the legal
foundation for pushing the homosexualist agenda to its logical
conclusion. Even from the outset this bill will put the full weight of
the federal government behind the heinous view that opposition to
homosexual practice is the equivalent of virulent racism and sexism.
You have been virtually codified in law as a bigot.
If you are
not convinced that this will be the outcome, try including
“pedosexuality” (i.e. pedophilia), a sexual
orientation toward children, under the rubric “sexual orientation”;
or “polysexuality” (i.e. polyamory), a sexual orientation toward
multiple sexual partners concurrently that could justify polygamy or
nontraditional “threesomes.” Then ask yourself whether inclusion of
these under a “sexual orientation” “non-discrimination” bill would
promote such behaviors and put on legal notice any opponents. The
answer, of course, would be “yes.” Presumably framers of the bill did
not make such an inclusion because they didn’t want to promote
pedophilia and polygamy. The inference is obvious. Inclusion of
“homosexuality” and “bisexuality” under “sexual orientation” will lead
to the promotion of such behavior in society and the attendant
diminishment of the rights of those who oppose the behavior.
A bill such as this could almost single-handedly end the
cultural debate about homosexual practice. Through legal intimidation in
a venue that most adults spend most of their awake-hours the society
will be dragged into acceptance of the homosexual lifestyle.
Omissions left out of the bill
today, or exemptions put in, will be reversed in the near future.
a. The current omission of
perceived “gender identity” or transgenderism
the bill included “gender identity” alongside “sexual orientation.”
“Gender identity” is not defined by “the individual’s designated sex
at birth” but rather by what one personally perceives one’s own gender
to be. In other words, the bill would have provided protection for
persons who perceive their gender to be other than their birth-gender
(i.e. the “transgendered” generally and “transsexuals” specifically).
When it looked like the bill wouldn’t pass with a “gender identity”
clause supporters removed it. However, the Democratic leadership will
now attempt either to reinstate H.R. 2015, which includes both “sexual
identity” and “gender identity,” or put forward a separate bill, H.R.
3686, that does for “gender identity” what H.R. 3685 wants to do for
“gender identity” passes this time around makes little difference in
the long run. If a “sexual orientation” ENDA is passed, it is only
a hop, skip, and a jump for Congress to amend the bill or for the
courts to declare the inconsistency and “unconstitutionality” of
excluding transsexuals from the same special protections accorded
homosexual and bisexual persons. Given the current maneuvers of
the Democratic leadership it is reasonable to believe that a
Democrat-controlled Congress will continue to push for the passage of
a “gender identity” clause. It will be a lot easier to pass such a
bill when a “sexual orientation non-discrimination” act is already in
True, both the original bill, H.R. 2015, and the new
bill, H.R. 3686, made certain provisions protecting the employer from
having to grant a cross-gendering person access to a “shared shower or
dressing facilities in which being seen fully unclothed is
Moreover, the employer can insist on “reasonable dress and grooming
standards.” Yet even these provisions require that the employer
provide facilities that are “not inconsistent with” the employee’s
perceived gender identity.
The exemption does not necessarily apply to shower or bathroom
facilities with closed-off stalls because there, arguably, being seen
“fully unclothed” is avoidable. In addition, the employer must allow
the cross-gendering employee to dress in a manner appropriate to the sex
to which the employee is in the process of “transitioning.” So if a
man declares to his employer that he is “transitioning” into a woman, he
must immediately be allowed entrance into the ladies room (or newly
constructed facilities) and the right to wear a dress and make-up
consistent with his new identity as a woman. Even if the person is in
the sales department or customer relations, where business depends on
not alienating or “weirding out” customers, the employer must
accommodate to this new perceived gender of the employee. As Dana
Carvey’s “church lady” character would say, isn’t that special?
Matthew Staver, chairman of the Liberty Counsel, has
rightly stated in testimony before Congress that a “non-discrimination
gender identity” clause “requires forced acceptance of a very radical
notion that gender is merely a product of personal expression completely
unrelated to a person’s biology of physiology. [Passage of such a bill]
represents the abolition of gender, which is the primary end goal of the
To be sure, the affirmation of homosexual practice already to some
extent accomplishes this, since one’s sex or gender links closely to the
sex or gender that desires as a complementary other-half. But the forced
acceptance of the premises of transgenderism makes explicit what is
implicit in the acceptance of homosexual practice.
b. The exemption
for religious organizations
the current “exemption for religious organizations” in Sec. 6 is being
used as part of a bait-and-switch tactic. The bill couldn’t
possibly be passed without one. So the accommodation is made but with
the awareness that once the homosexualist agenda holds absolute
sway in the public sector, Congress or the courts will eventually
revoke or so attenuate the exemption as to render it legally
meaningless. For example, religious colleges and seminaries
could be denied federal funding for research and student loans for
“discriminating” against homosexually active persons, even as their
“right” to “discriminate” against homosexual or bisexual persons is
preserved (as Bob Jones University found out as regards its
infringement of the civil rights of African Americans).
while the exemptions are in place there will still be serious
abridgement of liberties in the workplace.
It is important to note what protections the so-called
“religious exemption” does not give to religious persons. Sec. 6,
“Exemption for Religious Organizations,” now states only: “This Act
shall not apply to a religious organization,” where “religious
organization” is defined as “a religious corporation, association, or
society; or a school, college, university, or other educational
institution or institution of learning” if owned or supported by a
particular religion or “the curriculum . . . is directed toward the
propagation of a particular religion.” What does this not cover?
is not clear that the courts would understand this exemption to apply
to all employees of a religious organization
or only to those employees “whose primary duties consist of teaching
or spreading religious doctrine or belief” or supervising “religious
ritual or worship” (as the earlier version, HR 2015, sec. 6b, reads).
If the latter, the exemption would not cover many staff members at a
Christian college and seminary.
the exemption would not apply to secular businesses owned by
Christians, even those shaped by Christian
values. It would probably not apply to any profit-making Christian
businesses, such as religious bookstores and religious day care
centers. Whether the exemption would apply to parachurch
ministries such as a Christian shelter or retirement home is very
doubtful, as the Alliance Defense Fund has argued.
As the defendant in a lawsuit instigated by a homosexual or bisexual
applicant, the burden of proof would be on the entity seeking
exemption. This, in turn, means costly litigation with dubious
prospects of success.
most importantly, the exemption for “religious organizations”
doesn’t cover the religiosity of persons working in a non-religious
organization, which is where the vast majority of religious persons
work. And make no mistake about it: the bill isn’t limited to
decisions of hiring or firing. It pertains to any actions that
“adversely affect the status of the individual as an employee.”
Picture the following scenarios:
Suppose in the lunchroom or at
the water cooler you engage in a conversation
about sexual ethics. If a fellow employee extols homosexual bonds and
you express your moral reservations about such bonds, you or the
company could be liable for an anti-discrimination lawsuit for creating
an intimidating atmosphere in the workplace that adversely affects the
standing of a person who is vocal about his or her homosexual activity.
Let’s say that, in response to
“diversity” posters, you post on your cubicle the text of Rom 1:24-27.
Or in response to a corporate directive that you participate
supportively in a “Coming Out Day” you respectfully decline because
you find homosexual practice to be morally offensive. Or in an
attempt to get exempted from the email list of the company’s “GLBT”
organization (gay, lesbian, bisexual, and transgender) you send an
email requesting to be removed from the list because you think
homosexual practice is immoral. In all these circumstances, you are
far more likely to be disciplined or fired, and to have no legal
redress, with an “ENDA” in place than without it.
As a means of protecting the company
against “discrimination” lawsuits, your employer may require you to
attend indoctrination seminars that stress that homosexuality is as
morally neutral as race or sex; and, moreover, to participate in
“coming out” celebrations in the workplace that affirm “sexual
diversity.” Your employer may further prohibit, under penalty of
termination, any conversation, written communication, or act that
calls homosexual practice into question.
While homosexual and bisexual
persons will have their jobs protected under this act, your job status
and advancement will have no such protections if you manifest
“discriminatory” words against homosexual behavior. Indeed, not only
will your religious convictions not be protected in a secular workplace,
but also they will be treated as “bigotry” akin to racism and sexism.
Corporations don’t generally hire or promote bigots. It is not good for
Monitoring of “discriminatory”
beliefs toward homosexual and bisexual persons could even extend,
at least in the case of white collar employees, outside the workplace.
For example, if a school teacher has published in a newspaper a letter
that advocates that society not provide legal incentives for homosexual
practice, or offers counseling for those seeking to come out of the
homosexual life, the courts could rule (as the British Columbia Supreme
Court ruled a couple of years ago) that the employer is entitled to take
such discriminatory views into consideration in suspending or firing the
Although the bill currently does not
“require or permit” quotas based on minority sexual orientation
status, corporate executives know that it will serve their interest
under such a bill to increase the number of employees who identify as
homosexual or bisexual and to promote such employees as a safeguard
against possible discrimination lawsuits. With the passage of this bill,
the burden of proof will shift decisively to the employer to
establish that no discrimination against homosexual or bisexual persons
has taken place. Legal intimidation will exert a remarkable effect in
making the workplace an advocacy center for the homosexual lifestyle.
Eventually, too, we can expect even this language against quotas to be
removed from the law.
In short, ENDA will
endanger your right in the workplace not to be accosted on a regular
basis by a homosexualist agenda. It will become an “employment
discrimination act” against any who rightly find the equation of
homosexuality with ethnicity and gender to be deeply flawed.
Homosexuality is an impulse to behave in ways discordant with embodied
existence (i.e. unnatural),
not 100% heritable, and open to some change; race and sex (gender) are
more a state of being than an impulse to do something and certainly
concordant with one’s embodied existence, are 100% congenitally
determined and heritable, and are more or less culturally immutable.
This bill is not
about guarding against massive discrimination against homosexual
persons comparable to what African Americans have historically
experienced. Persons who engage in homosexual practice have comparable
individual incomes to heterosexuals. On average, they have more
disposable income than heterosexuals since homosexual relationships are
far more often characterized as double-income, no-children arrangements.
No, this bill is about advancing the homosexualist agenda and
marginalizing in the workplace those who regard homosexual practice as
In today’s political
climate, certainly in white collar jobs, one is more likely to suffer
employment discrimination by expressing disagreement with homosexual
practice than by engaging in such practice.
This is certainly true of the entertainment industry, most media
outlets, most educational institutions, most Fortune 500 companies, and
so on. We should be pushing for an ENDA that protects the job security
of those who believe in a male-female prerequisite for valid sexual
relations, not signing off on a bill that will lead to codifying us as
bigots to be oppressed.
Peter LaBarbera, president of Americans for Truth about
Homosexuality, is certainly correct when he states that ENDA “would
be used to defend the placement of openly homosexual and bisexual
teachers in our nation’s public schools in ALL localities. . . .
For the more
activist-minded homosexual teachers who are already in schools, H.R.
3685 could lead them to more boldly promote and discuss their
lifestyle in the classroom, as schools could be sued for
discrimination if they dared to discipline activist ‘gays’”
(“Fourteen Good Reasons to Oppose H.R. 3685, the ‘ENDA Our Freedom’
I have not addressed the question of
whether there might be circumstances in secular employment where a
person’s active homosexual lifestyle could have employment
repercussions (certainly this is what homosexual activists argue
with respect to persons who express disagreement with the homosexual
life). Yet it is question worth exploring. One can make a good case
that homosexual practice is so incongruous with embodied existence
that it is at least as bad an offense, or more so, as
adult-consensual incest, polyamory, or adultery (certainly this is
Scripture’s view of things, as I have shown elsewhere). Are there
some secular white-collar positions that should be denied to
employees who trumpet the fact of having ongoing sexual relations
with an adult who is a close blood relation (say, a parent or
sibling), or of actively engaging in adulterous affairs? Does an
employer have the right to terminate the employment of someone who
brings his sexual partner, who happens to be his mother or sister or
mistress, to company gatherings?
In other words, are there any
secular employment situations where there ought to be a right to not
hire, or a right to terminate, someone who actively engages in, and
flaunts, egregious immoral (but not necessarily criminal) behavior?
One might say that people fornicate all the time and don't get
fired. Agreed. But homosexual practice is more comparable to serial
unrepentant incest or adultery. Probably for most secular positions,
especially blue collar positions, virtually anything should go.
However, in responsible white-collar positions, morals are sometimes
considered in the hiring and promotion process, at least as regards
some particularly revolting behaviors that shock normal
sensibilities (certainly adult-consensual incest and polygamy would
qualify, sometimes repeated adultery, and definitely making racist
or sexist comments). Homosexual activists and their allies who argue
that “discriminatory” comments against the homosexual life should
affect a person’s employment are also using a morals test, however
misguided. The question is not whether to have a morals test, it
seems to me, but where to draw the line.
If one has in mind someone who experiences same-sex attractions
but who is quiet and doesn’t adopt a high-profile advocacy stance
(like spearhead a corporate GLBT advocacy group) and who
doesn’t insist that the company give at least implicit validation
of his or her same-sex sexual relationship (say, at company
gatherings where spouses are invited), then it is easier to be
sympathetic to a non-discrimination policy. But if one has in mind
the opposite of this—high-profile, abrasive persons determined to
change the entire company ethos to cater to his or her
immorality—then the whole matter becomes more problematic.
Robert A. J. Gagnon,
Ph.D., is an associate professor of New Testament at Pittsburgh
Theological Seminary and author of numerous works on Scripture and