Thursday, May 3, 2007

The Employment Non-Discrimination Act and the Definition of "Sexual Orientation"

The Employment Non-Discrimination Act (H.R. 2015) has been introduced again in Congress by Rep. Barney Frank (D-MA) and numerous others. ENDA amends Title VII to forbid discrimination in employment on the basis of "sexual orientation" and "gender identity."

Section 3(a)(9) of the bill states that "[t]he term 'sexual orientation' means homosexuality, heterosexuality, or bisexuality."

The definition of "sexual orientation" has been a point of controversy in many of the lawsuits in which the CLS Center has challenged the application of nondiscrimination policies to religious groups. The use of the word "orientation" suggests that it refers to a person's sexual attraction to members of the same sex, the opposite sex, or both. CLS itself -- and virtually all of the theologically conservative Christian organizations we have encountered -- do NOT discriminate on the basis of "orientation" per se. In other words, the fact that a person experiences same-sex sexual attraction does not disqualify him or her from employment, membership, or leadership. It is his or her conduct that primarily matters; whether the person engages in extramarital sexual activity (whether homosexual or heterosexual) is the key thing.

It is hard to imagine that homosexual rights advocates would be satisfied with rules that merely barred discrimination on the basis of orientation per se and thus allowed employers to take conduct into account.

It is not clear to me that ENDA's definition of "sexual orientation" entirely resolves the ambiguity about the phrase. However, I suspect that ENDA supporters would argue that the word "homosexuality," for example, refers not only to one's sexual attraction to members of the same sex, but also to one's participation in same-sex sexual intimacy.


daenku32 said...

Lets separate the acts from beliefs then.

Believe in Christ-ok.
Go to church-not ok.

Support holding of sex until marriage-ok
Holding off sex until marriage-not ok.

If employers had this kind of policies, would you support them?

Admin said...

Thanks for your comment.

My point was *not* to suggest some universally applicable rule under which (1) *all* beliefs are always "ok"; but (2) *no* actions are "ok."

My point was to suggest that it is not entirely clear how ENDA's definition of "sexual orientation" would apply to the way that many theologically conservative religious organizations deal with the issue of homosexuality.

On the merits, I think your point is (and I don't mean to put words in your mouth) that it is irrational or absurd for a group to "accept" someone's inclinations but not accept the actions taken consistent with those inclinations. I respectfully suggest that this is not an irrational distinction. All of us are inclined to do things that are morally wrong, but I don't think it is illegitimate for others to be more concerned about *actions* taken consistent with those inclinations than they are about the inclinations per se.

I'm not sure I understand the question you pose, perhaps because the hypotheticals don't seem to have any connection with reality. What sort of employer forces its employees to engage in sex before marriage? What sort of employer allows belief in Christ but forbids employees from going to church?