CREDIT: Flickr user Matt Baume
The Heritage Foundation, arguably the most powerful ideological force in the modern conservative movement, has declared war against LGBT workplace rights.
Heritage’s Action Fund announced on Friday it would “score” an upcoming Senate vote on the Employment Non-Discrimination Act (ENDA), meaning that any Republican who votes for ENDA would get a black mark on Heritage’s influential legislative scorecard. Though protecting LGBT Americans from being fired on solely on the basis of the sexual or gender identity is massively popular, Heritage’s threat could scare off Senate Republicans wary of a Tea Party primary challenger.
This move is distressing, but not surprising. What’s more interesting is Heritage’s reason for opposing ENDA, which boils down to an astonishingly anachronistic demand for gay and transgender Americans to jump back in the closet and stay there. It’s argument for a certain kind of corporate feudalism that’s incompatible with the ideals of individual rights Heritage so often claims as its lodestar.
Heritage Action’s decision is entirely sourced to a Heritage paper written by Ryan Anderson, the Foundation’s go-to expert on LGBT issues and a leader in the campaign against marriage equality. The core of Anderson’s argument, as it has to be, is that gay people do not deserve the same federal workplace protections as racial minorities or women. This is explicit, not my interpretation: the core section of Anderson’s paper is titled “Sexual Orientation and Gender Identity Unlike Other Classes.”
The reason this argument is the critical step in Anderson’s argument is obvious. He cites an employer’s right to put up “a letter from his Congresswoman expressing reservations about homosexuals in the military” in the office as the sort of behavior he wants to defend. I think we’d all agree that, if an employer put up a letter “expressing reservations” about black people’s presence in the military, that’d create a hostile work environment for African-American employees. So Anderson needs to explain why racist employer behavior we’d obvious want to prohibit is different from the same actions aimed at gay employees.
Some of his arguments to this effect are just laughable. To wit, “America has no similar [to Jim Crow] history of society-wide legal prohibitions on employment based on sexual orientation or gender identity.” Well, sure, but that’s because LGBT Americans were simply assumed not to exist or were actively repressed. There wasn’t any need to ban LGBT employment, in other words, because social stigma against LGBT people was so universal that they were forced to hide who they were for fear of being fired or worse.
That being said, the United States does have a sordid history of legal discrimination against LGBT citizens. Take the federal government itself as an example. In 1950, Congress issued a report titled “Employment of Homosexuals and Other Sex Perverts in Government,” defining homosexuality as a mental illness and suggesting the “afflicted” posed a national security threat to the United States. Afterwards, around 5,000 LGBT individuals were fired from their government jobs or discharged from the military. In 1953, President Eisenhower issued an executive order banning gays and lesbians from working for the federal government or any federal contractors.
Shockingly, this record of bigotry against LGBT workers has left a mark. Somewhere between 15 and 43 percent of LGBT workers, depending on the survey, have experienced discrimination on the job. Between eight and 17 were fired or missed out on promotions because of their sexual or gender identities. An extraordinary 90 percent of transgender individuals have been harassed at work.
So there’s a real, undeniable, and horrifying level of discrimination against gay workers. We can go home — the argument’s done, right? Not so fast, Anderson says. The problem with ENDA in his eyes that being gay simply isn’t the kind of identity that the federal government can possibly protect from discrimination.
Here’s what he means. Sexual orientation and gender identity refer to “voluntary behaviors as well as thoughts and inclinations,” whereas “race” and “sex” are obvious “traits.” Therefore, ENDA would protect LGBT individuals’ right to publicly express their sexual orientation, which Anderson implies is somehow a reason to reject the law.
But as any LGBT person knows, being gay or transgender is neither a “voluntary behavior” nor merely having certain “thoughts and inclinations;” it’s an identity every bit as important to someone’s life as their race, religion, or sex. Allowing employers to discriminate against LGBT employees literally empowers them to shove their employees back in the closet. Hide your gayness, on pain of firing.
That’s an extraordinary admission of what Anderson’s position is really about. Though he throws up risible claims about ENDA turning America’s labor market into France’s and silencing free speech, the core of the debate is about whether employers should have the right to determine whether their employees can be out in the workplace. It’s about replacing individual control over one’s sexual orientation and gender identity in the place where most Americans spend the vast bulk of their day with employer control.
This can’t be squared with a concern for individual rights. The employee-employer relationship grants the employer immense amounts of power over their workers, who depend on their boss’ good will for their livelihood. Allowing employers power to fire employees who come out of the closet, full stop, subjects LGBT employees to immense coercive pressure. Their most basic right to conscience, the right to express a core part of their identity, is obliterated.
Anderson suggests this is in tension with the rights of religious employers to express their beliefs, but ENDA contains unprecedented protections for religious institutions. What’s at issue here is the right of LGBT Americans to openly and freely express who they are — a right that I had hoped was no longer seriously in question.