The Ethics & Religious Liberty Commission

Statement on The Employment Non-Discrimination Act

By Richard Land - Sep 5, 2007 - 4

Statement by Richard Land submitted for the U.S. House of Representatives Committee on Education and Labor’s Subcommittee on Health, Employment, Labor and Pensions Hearing Sept. 5 on The Employment Non-Discrimination Act of 2007, H.R. 2015

Thank you for the opportunity to express to the Subcommittee on Health, Employment, Labor and Pensions our concerns about the Employment Non-Discrimination Act of 2007, H.R. 2015. Quite simply, we oppose this bill. We believe in the Constitutional principle of equal protection. With this in mind, we do not believe it is appropriate to provide special employment protections for people based on their perceived gender or sexual identity beyond what has been traditionally provided and is legally protected under Title VII.

While the Southern Baptist Convention has made clear on numerous occasions our objection to special protections for homosexuals based on our theological convictions, we also have concerns about H.R. 2015 that are non-religious in nature. This bill is wide-reaching in its scope. It will protect not only homosexuals, but also transgendered people, cross-dressers, and anyone else who claims to have a different understanding of his or her gender or sexual orientation. We can imagine the chaos in the workplace that will result when individuals claim the right to wear whatever they believe is appropriate for their sexual identity. We can imagine the offense to other employees as employers attempt to accommodate the needs of some employees based on their particular perceived gender or sexual orientation needs.

While some workplace accommodations for employees are appropriate based on immutable characteristics like race, gender and disability, these accommodations do not create an atmosphere that other employees would consider threatening to their own sense of security in the workplace. H.R. 2015 is different than other workplace mandates because it requires employers to accept the gender identification made by the employee regardless of actual physical evidence to the contrary. For example, a person who is anatomically male can claim to be female in gender identity and therefore demand access to space previously reserved for women, such as the women’s bathroom. Some female employees may feel threatened if forced to share the bathroom facilities with a man.

Further, the bill seems to suggest that an employer will be able to classify all employees as either male or female in gender. Yet, many authorities also speak of transgender people who perceive themselves as both male and female, or neither. How will the employer address this? What recourse does the employer have when an employee gives notice that neither male nor female gender assignments are acceptable and claims the right to workplace accommodations the employee considers appropriate? In addition, many in the scientific community are still developing theories of gender identity. While the issue may be settled for us, the vast majority of the rest of the evangelical community, and many others, some secular authorities seem far less certain about current definitions about gender. It is possible that this bill could take on much broader applications as the secular science evolves on the whole question of gender and sexual orientation. Thus, we are deeply concerned about the unintended consequences that could result from this bill. In the hands of a judge with a new definition of gender, this bill could be applied in ways that the bill’s sponsors have not even imagined. We notice that the bill does not even limit gender identity to male and female. Is this because those who wrote it are already uncertain about appropriate or comprehensive gender attributions?

We appreciate the attempt of the bill to exempt religious institutions from its requirements. However, we are dismayed that the legislation attempts to distinguish between various activities of religious organizations, exempting some of their activities from its hiring protections but not all of them. Religious organizations engage in a wide range of activities in order to fulfill their calling from God. While some people may not consider some of their activities to be central to their mission or sufficiently religious in nature, the organizations may believe much differently. A religious organization may perceive all that it does to serve people as a direct outgrowth and expression of their service to God. As such, they may believe such activities as child care, private school education, or job training services are efforts of the organization to serve God by serving the community. It is unacceptable for the government to have the power to dictate to those organizations which of their activities are sufficiently “religious” and, therefore, exempt and which are not. Further, it should not fall to the organization to declare ahead of time which are or are not. This places an undue burden on those organizations, putting them in the position of liability for failure to adequately address the requirements of the bill or to act in a timely manner. In spite of the sponsors’ best efforts, any attempt to exempt religious institutions from this legislation is insufficient since the underlying bill is so fatally flawed.

We consider this bill to be an inappropriate government intrusion on businesses and the religious community. We oppose it and ask that the Committee take our concerns under consideration and reject H.R. 2015. We are available to answer any questions you may have regarding our response to this bill.

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