The Conservatives’ Guide To Justifying Discrimination Against LGBT People


The Heritage Foundation’s anti-LGBT scholar-in-residence Ryan T. Anderson is back with a lengthy report justifying discrimination against LGBT people. Nondiscrimination protections based on sexual orientation and gender identity (SOGI), he argues, impede the free market, free speech, and religious freedom, penalizing those with beliefs that are “reasonable” — a word he uses 17 times to emphasize the point.

Anderson’s penchant for thoroughness, however, is his own undoing. By attempting to explain how beliefs that oppose the existence, well-being, or equality of LGBT people are “reasonable,” he actually demonstrates just how bigoted they are. In particular, his distinctions between race and sexual orientation and gender identity outline how to actually erase and disregard what LGBT people experience to such a degree that — by his logic — refusing to treat them equally isn’t discrimination at all.

But the report is nothing but a guidebook to discrimination, and it relies on countless myths about LGBT people to get there.

Sexual orientation and gender identity are just too “subjective.”

Anderson’s primary thesis is that LGBT people are not fit to assess their own “subjective” identities. The terms “sexual orientation” and “gender identity” cannot be clearly defined, and thus SOGI laws would not be fairly enforceable. In contrast, those who reject transgender identities and insist on the complementary of men and women are asserting “objective” biological realities.


Gender identity, he writes, “is an entirely subjective self-declaration.” Given that SOGI laws, like the Equality Act proposed in Congress, do not require transgender people to change their name or undergo medical transition to be protected, all that matters is “one’s self-professed and chosen identity, appearance, mannerisms, and behavior.”

Similarly, sexual orientation, usually defined in SOGI laws as “homosexuality, heterosexuality, or bisexuality,” is too subjective a term. He worries that the fact that a person’s sexual orientation might change over time makes it too “ambiguous. “It could also cover other “inclinations and behaviors” like polyamory, sadism, and masochism, even though sexual orientation, by definition, only refers to the sex or sexes that one might be oriented toward.

In a long aside, Anderson insists that sexual orientation and gender identity cannot be compared with race — not only because they are “ambiguous, subjective, and variable,” but because they are “linked to actions, which are a proper subject matter for moral evaluation.” Because a person’s sexual orientation might determine who they have sex with and a person’s gender identity might determine how they present themselves to the world, these identities are “categorically” different from the color of a person’s skin.

Ironically, and tellingly, Anderson does not once mention that the same laws that protect against discrimination based on race also protect against discrimination based on religion. He seems to have no objection to these protections even though — unlike sexual orientation and gender identity — religious identity has absolutely no connection to biology or psychology, can arbitrarily change through conversion or deconversion, and is identified only by actions and subjective self-identification. Indeed, it is these actions — discrimination against LGBT people — that he believes warrant more protection.

Anti-LGBT people aren’t bigots; they’re victims.

Anderson’s arguments would fall apart if he applied his own rules about “subjective” identities to religious discrimination, but he generally believes religious people can do no wrong. In fact, he presupposes that, when motivated by religious beliefs, discrimination against LGBT people is either acceptable or simply not discrimination whatsoever. These beliefs about gender and sexuality are so age-old, he claims, that there’s no way that they can constitute bigotry:

SOGI laws impugn judgments common to the Abrahamic faith traditions and to great thinkers from Plato to Kant. By the light of religion, reason, and experience, many people of good will believe that our bodies are an essential part of who we are and that maleness and femaleness are not arbitrary constructs but objective ways of being human. A person’s sex is to be valued and affirmed, not rejected or altered. Our sexual embodiment as male and female goes to the heart of what marriage is: a union of sexually complementary spouses from which the next generation naturally springs. Sexual orientation and gender identity refers not only to thoughts and inclinations, but also to behavior, and it is reasonable for citizens to make distinctions based on actions. However, SOGI laws would prohibit reasonable decisions made in response to behaviors that are fraught with moral weight.

For Anderson, actions taken by religious people cannot be separated from their identities, but actions taken by LGBT people are always entirely separate. For example, he believes wedding vendors should be free to refuse service to same-sex couples because “religious liberty has been invoked largely with respect to marriage, not with respect to sexual orientation in general.” Essentially, such refusal should not be considered discrimination on the basis of sexual orientation — an argument that has failed to convince courts in these cases. By being charged with discriminating, these vendors, he contends, have themselves “been the targets of government discrimination.”


He similarly claims that SOGI laws have “mandated government discrimination against adoption agencies,” suggesting that several religious-run agencies were “forced to end” their programs. In reality, they were simply told that they could not discriminate against same-sex families and continue to receive state subsidies. Rather than continue to function without that funding, they voluntarily shut themselves down, determining it was better to serve the needs of no children rather than place some with same-sex families. In a separate report, Anderson endorses the First Amendment Defense Act, a bill that would ensure schools and organizations could continue to discriminate against LGBT people without facing governmental repercussions.

SOGI laws would also hamper free speech in the workplace, because religious individuals who might insist that marriage is between a man and a woman — even though marriage equality is now legal in all jurisdictions — would be found guilty of contributing to a “hostile or offensive work environment.” Anderson has little concern for the LGBT employees who might have to work in an environment in which their colleagues or superiors regularly castigate them or deprive them of professional opportunities and advancement because here again, the actions of religious individuals take priority over the identities of LGBT people. Of course, he does not believe anti-LGBT discrimination actually happens, referring to SOGI laws as “a solution in search of a problem.”

Despite asserting that anti-LGBT viewpoints are based on “objective” truths about humanity, Anderson believes that application of these truths should be applied as subjectively as possible. Schools should not discuss these issues, because they are “adult debates” that children should not be exposed to until they are of a “an appropriate age,” one apparently quite higher than the age at which they might actually realize they have an LGBT identity. Likewise, decisions about how best to accommodate these students’ identities (or not) “are best handled at the local level, by the parents and teachers closest to the children,” regardless of whether they make decisions informed by the research about how best to affirm LGBT youth.

Anderson similarly leans on the narrative that these laws are “disturbing policies governing transgender persons’ access to restrooms,” just like the scare tactics used to defeat Houston’s LGBT nondiscrimination protections. Businesses may have “privacy or safety concerns” that transgender people might harm women or children in sex-segregated facilities — a complete myth — and they “should be free to choose their employees and their customers.”

Even if the majority of Americans increasingly disapprove of discriminating against LGBT people, “in this country we tolerate such differences for the sake of the benefits of liberty — creativity, innovation, reform, economic vitality, and the like.” In other words, enough people think anti-LGBT discrimination is okay, so it should it remain legal.

Anti-LGBT discrimination isn’t so bad the market can’t fix the problem.

Anderson relies heavily on the notion that anti-LGBT discrimination simply isn’t a nationwide problem, despite a long history of persecution and ample evidence that discrimination continues. Because LGBT people did not face a history of slavery like people of color, laws are not required to rectify their inequality. After all, “disagreement with someone’s actions is not enough to justify the government coercing him into conformity with prevailing opinion.” He doesn’t explain why other protected groups, like women and people of faith — groups that similarly were not forced into chattel slavery with the United States’ legal blessing — are still deserving of the protections they already enjoy under the law.


Instead, he believes that for LGBT discrimination, “free association and exchange are usually sufficient to sort these things out.” If a business posts a “no gays allowed” sign, its business will suffer enough without the need for government intervention. Indeed, the fact that most of the country’s largest corporations have LGBT protections is somehow proof that “the market is already sorting things out.” This is an ironic argument from Anderson, who has previously chastised companies like Apple for making business decisions based on their desire to protect LGBT employees and customers. It also directly contradicts his claim that anti-LGBT beliefs are “reasonable” because of how widely held they are.

Even when discrimination actually happens, Anderson doesn’t see it as a problem. “In every publicized case of a business owner declining to facilitate a same-sex ceremony,” he reasons, “the service sought by the couple was readily available from other businesses.” Besides disregarding the psychological harm inherent in the act of discrimination, he also has no concern for whether going to another business may cost individuals more or require them to travel further.

This vein of rhetoric is not new for Anderson. In his book opposing marriage equality published this summer after the Supreme Court’s Obergefell decision, he similarly laid out a thorough case for his arguments. In doing so, he similarly revealed the myths about LGBT identities that his beliefs rely upon, including many studies that had been widely debunked by the scientific community.

Social conservatives look to Heritage and to Anderson as figureheads for their advocacy. By attempting to fulfill that role, Anderson has only made it more transparent that his true motivation is to keep LGBT people relegated to a second-class citizen status.