Discrimination is Discrimination

March 4, 2017
I'm highlighting a piece that tries to create a space for religious discrimination against LGBT folks. This is done by redefining discrimination in a way that allow it against LGBT folks but not against African Americans, Muslims or the disabled. This is done by parsing out difference between invidious discrimination and ordinary distinctions. The first is treating a class of persons unequally in a manner that is malicious, hostile, or damaging. Jim Crow is an example. They are done to show social disapproval against a minority group.

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Where as distinctions are the kind we raise between boys and girls in sports. We separate the teams recognizing differences in physiology. Of course if there are more teams for boys, that is more opportunities because of their gender, then that does produce a kind of invidious discrimination. Which is why Title 9 has been so important to provide the same opportunities for girls in school sports. But we are told that discrimination against LGBT folks is what happens when we make relevant distinctions, especially those informed by religious tradition and in no way display hostility to a group because they are members of a group. For instance Catholic Charities, we are told, believes that the best family for a child is a father and a mother. They decline to place the children entrusted to their care with same-sex couples not because of their sexual orientation, but because of the conviction that children deserve both a mother and a father.

So when they discriminate against LGBT folks they are not targeting a group. Therefore it is not invidious discrimination. This is hard to believe given that Catholic Charities will adopt to single people. So a mother and a father is not a standard, nor is marriage a standard. There is no change in a LGBT couple's life, including marriage that could allow for adoption through Catholic Charities. Therefore it is targeting them because of their orientation.

Catholic Charities and a number of religious agencies seem like private groups, simply operating out of their religious mission, except that they are contracted out by the state to perform functions of the state. And in many states they have now taken on the bulk of this work. In Texas 90% of foster care is handled by private agencies and now there is an effort to fully privatize the system, including that of child protection workers. The problem is even though they represent the state, these private groups can largely shut out LGBT folks from adoption and fostering and there is little recourse.

As for the florists denying service to LGBT folks?

The customer’s sexual orientation did not play any role in Stutzman’s decision. Her belief that marriage is a union of sexually complementary spouses does not spring from any convictions about people who identify as LGBT. When she says she can do wedding flowers only for true weddings, she makes no distinctions based on sexual orientation at all.

Of course what makes a wedding a true wedding or a false one? The sexual orientation and genders of those marrying. It is the only difference. The law makes no distinction when it comes to marriage. They are married, it is because they are gay that makes all the difference. So yes this is a distinction, or a form of discrimination based on sexual orientation.

But we don't have to discern the personal motivations of the groups and individuals on the religious right, even when they make their views abundantly clear about LGBT folks. You only have to look at disparate impact. If you design a policy or a law that by definition shuts out LGBT folks from the same services that heterosexuals have, it is still appropriate to see that as discrimination.

That disparate impact is what produced Title 9 in the first place. When we recognize the need for boys and girls sports, this cannot be used as a means to shut out girls from athletic programs.

What about transgender kids? Policies that require them to use bathrooms that correspond to the gender listed on the birth certificate, if it does not align with their gender presentation, puts them at harms way. As this NPR piece notes: "About 70 percent of the sample reported experiencing being denied access to restrooms, being harassed while using restrooms and even experiencing some forms of physical assault."

There a distinction moves into invidious discrimination, concrete harms visited upon a group. And forcing kids to use the teacher's restrooms, separating them out to highlight their difference with other kids sets those kids up for bullying and certainly brings a social cost on them.

I'm not opposed to creating a space for kids and adults of all genders that protects privacy, as Ruth Bader Ginsburg imagine would happen at the Virginia Military Institute when they were ordered to end gender discrimination. But it should not be done in a way that isolates transgender folks. Or anyone for that matter. As a gay man, I can't say that shared showers in gym made my life any easier in school.

The point is not to harm LGBT folks, at least through the state and through those involved in public commerce and services, whether they are called "private" or not. Non discrimination laws do that and work in the way they were designed. But they also signal a kind of social acceptance that the religious right opposes. And that social acceptance matters, when it comes to the question of harm.

And it is important to note, that every piece of legislation or action that could indicate social acceptance has been opposed by the religious right. From Ellen coming out, the Supreme Court ruling that states could not have sodomy laws, marriage equality legislation, opposing Gay Straight Alliances in schools, opposing the inclusion of books in libraries that recognize LGBT lives, to opposing commercials that recognize same sex couples. It's important to not isolate their opposition to non discrimination laws from their wider campaign for social marginalization and to oppose it.

Dwight Welch is the pastor at the United Church of Norman, Oklahoma