Jun 18 2020
Reserving the right to object, there is a single thread that runs through the Supreme Court’s decision in the Bostock case earlier this week and all the way through the legislation now under discussion on the Senate floor.
That principle deals with non-discrimination.
The principle that, as Americans, we believe that people shouldn’t be treated differently on the basis of factors, characteristics, traits that have nothing to do with their job.
I think most Americans can agree with that, and I think most Americans can agree that an individual shouldn’t face such discrimination in the workplace based on his or her sexual orientation.
The important thing that we have to remember is that much of where the law is found and much of what we can perceive from a position of justice and equality and fairness relates to where the exceptions are found.
I’ve got two principle concerns with this legislation that are also shared by the Bostock ruling.
The first relates to exceptions related to religious employers. Neither the Bostock decision nor the Equality Act takes the care to ensure that religious employers will be treated fairly under this approach to be. We need to be mindful of the need of a religious employer to maintain its doctrine and its teachings not only in the hiring of its ministers but also in the hiring of other people who work toward moving forward that religious institutions teachings in the way they live their lives, in their beliefs, and their willingness to teach those things to others. This legislation doesn’t do that, and I think any legislation that we move forward on this needs to have it.
Secondly, neither this legislation nor the Bostock decision takes into account some significant distinctions between sexual orientation on the one hand, and gender identity on the other. In the case of gender identity, the law needs to take into account certain questions regarding what impact the law might have on girls and women’s restrooms and locker rooms, girls and women’s athletics, single-sex safe places for people who are for example the victims of domestic or sexual abuse.
This law like the Bostock decision doesn’t operate with a lot of precision and sort of takes a meat clever to the issue without taking into account exceptions for religious entities and distinctions between sexual orientation and gender identity. On that basis, I have concerns.
Noting that I’ve got some colleagues who want to speak to this issue at all, I decline to object as of this moment.