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It was recently reported that the Owensboro City Commission will hear the first reading of an ordinance to include sexual orientation and gender identity (SOGI) as protected behavior into its nondiscrimination code on August 19. Specifically, the move will elevate SOGI to the same status as race and ethnicity regarding housing, employment and public accommodations. This is troubling on many levels.  Perhaps the city commission will take a moment to consider a few questions before they take any action.

First, why is this ordinance needed? How many documented cases of sexual orientation or gender identity discrimination are there in Owensboro?  Second, could it potentially punish business owners who refuse to materially participate through their products or services in gay weddings?  Finally, does this ordinance protect homosexual activity in the workplace?  Does it protect crossdressing in the workplace?

Consider that there is no scientific consensus on how to define sexual orientation.  Sexual orientation is a subjective category. It is self-disclosed and self-defined.  Unlike race and ethnicity, which are inborn, nonbehavioral characteristics, SOGI includes behaviors. An employer’s decision to reasonably taking into account the behavior of employees in the workplace are core personnel decisions best left to businesses themselves, not the government.

We were once told that somebody’s private sexual life is nobody’s business. Should this ordinance pass, it drags private sexual behavior into the workplace. Here’s how: if employers shouldn’t ask about somebody’s private sex life during an interview and the prospective employee doesn’t bring this up, then how can an employer be held accountable for failing to hire somebody based on their sexual orientation? It could also punish employers who are publicly known for high moral standards in their workplace—think Chik fil-A and Hobby Lobby. They could become a target or test case for homosexual activists who might push the envelope. The last thing businesses need in this tough economic climate is a subjective law that would be easy to abuse and put them at risk of liability.

Truth is, most business owners are having trouble finding hard working and qualified employees. They are most concerned about finding reliable workers who contribute to their team. Few if any employers are going out of their way to look for a reason not to hire an otherwise well-qualified employee.

If this ordinance is anything like a Kentucky law proposed earlier in the year, it extended to “financial transactions in certain insurance sales.” Does this mean that sex change operations must be covered in insurance policies?  Which brings up another troubling aspect of the ordinance: gender identity protection.

According to the American Psychological Association, gender identity is “'one’s sense of oneself as male, female, or transgender.’  When one’s gender identity and biological sex are not congruent, the individual may identify as transsexual or as another transgender category.” In December of 2012 , the APA removed "Gender Identity Disorder" from its list of abnormalities.  Transgenderism is now on the cusp of being protected by law.

What does this mean practically? Massachusetts passed a SOGI law in 2012. Shortly after, the state school superintendent issued an order which required all public school bathrooms open for transgendered students.  When Washington State extended rights to transgendered individuals, Evergreen College could not tell a 45-year old male who identified and dressed as a woman that he couldn’t use a women’s locker room. Even though young girls used the facility and parents loudly objected, Evergreen spokesman Jason Wettstein issued a tepid response. “The college has to follow state law. The college cannot discriminate based on the basis of gender identity,” Wettstein said. “Gender identity is one of the protected things in discrimination law in this state.”

Is this where Owensboro wants to go? That’s a question the commissioners will apparently have to answer.

This piece appeared in the Owensboro Messenger-Inquirer on August 13, 2014.


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Director, Commonwealth Policy Center