IGF CultureWatch

Remember when LGBT activists said they only wanted equality, not special treatment. They don’t, either.

In Massachusetts, Gov. Charlie Baker issued an executive order to add LGBT-owned businesses to a diversity program under which a percentage of state contracts is set aside for minority-owned businesses. That is, of course, a way of ensuring preferential treatment in government contracting for businesses not owned (officially) by straight white men.

Eugene Volokh, a law professor at UCLA, blogs:

I wonder: How will anyone know whether a business owner is bisexual? Do you have to say that you’ve had sex with members of the same sex? What if you just say that you’re attracted to members of the same sex? Or is the state relying on the assumption that non-bisexuals would be reluctant to label themselves bisexual, even when that helps them get valuable contracts, for fear that the label will come out to their friends (or to other prospective business partners who discriminate against bisexuals rather than in favor of them)?

And one of his blog commenters asked,”Is there evidence that well-qualified LGBT-owned businesses have been historically disadvantaged in MA government contracting?”

It’s all politics and pandering, of course, and who has got the power now, baby.

Voters in Houston soundly defeated the proposed Houston Equal Rights Ordinance (HERO), which would have broadly expanded LGBT (and other) anti-discrimination protections, with 39 percent voting “yes” and 61 percent saying “no.”

The measure would have prohibited bias in housing, employment, city contracting and business services for 15 protected classes, including race, age, sexual orientation and gender identity. But, as the Texas Tribune reports, opponents successfully framed the measure as a “bathroom ordinance,” since it presumably would have allowed transgender individuals who have not undergone gender reassignment surgery to use the public restrooms that they felt were appropriate to their gender identity, which transgender people often point to as a challenge. That opened the door for this:

Outside of polling places, signs read “NO Men in Women’s Bathrooms.” And television ads bankrolled by opponents depicted a young girl being followed into a bathroom stall by a mysterious older man.

The challenges faced by transgender people are great, and restroom accommodation is among them. Since people don’t typically walk around public restrooms naked (and they do have stalls, after all), the opposition seems on the hysterical side, but it was obviously effective.

On the other hand, there are cases involving locker rooms where people do get naked, which raise more difficult issues. This week, for instance, the U.S. Department of Education found that a Chicago suburban high school district discriminated against a transgender student who has not undergone gender reassignment surgery, and gave the school a month to provide her with full access to girls’ locker rooms or lose federal funding.

The school district had “provided the student with a separate changing facility outside the locker room and installed privacy curtains on stalls in one locker room out of the three that she uses for physical education, swimming and athletics programs, according to the federal government’s findings.” No matter; the ACLU and transgender activists considered that accommodation separate and unequal (because the race analogy applies to everything) and sued.

This is not an isolated case; other transgender suits have involved swimming pool locker rooms and saunas. But the focus here on mixed-anatomy nudity among public school minors seems particularly incendiary.

When gender identity and physical anatomy conflict, pushing the fight to nudity in locker rooms—including in high schools—is the kind of tactic that provokes a broader backlash under which reasonable demands get lumped and fought.

Might it be, in fact, a reasonable compromise for those who are transgender but have not made a full transition to use gender-neutral single facilities for changing and showering?

More. The Washington Post on Why Houston’s gay rights ordinance failed:

But as much as HERO’s proponents decried the vote, the proposition was rejected by a decisive majority of the citizens of the nation’s fourth-largest city. Turnout was strong among white conservatives and African Americans — demographics likely to oppose the measure….

Many in the protected classes under the ordinance, including race and age, are already covered by federal anti-discrimination laws. LGB&Ts are not.

This helped opponents characterize the bill as if it were just about transgender bathroom use. And that, I believe, was itself an encapsulation of pent-up reaction to a range of LGBT advances, from the legal recognition of same-sex marriage to the perceived persecution of conservative Christian small business owners who don’t want to provide services to same-sex weddings.

Furethermore. I usually agree with columnist Steve Chapman, but he comes down on the other side of the locker room controversy, writing:

What does that leave? Either treating Student A as a girl for all purposes, as the government insists, or for all purposes but one, as the school district has chosen….

If the district is serious about privacy, it can offer more spaces that cater to the needs of modesty. It might also post signs stating a locker room rule that most kids already know: Keep your eyes to yourself.

Maybe that works in some places (Chapman cites, approvingly, a local newspaper’s survey of students at two suburban Chicago high schools), but there are times when penises in the girls’ locker room (or womens’ locker rooms, regarding public pools and saunas) is going to be a legitimate issue, and not just among “bigots.”

And certainly a political issue. Via the conservative Weekly Standard:

There is a lesson in this, especially for Republicans. The left is in the process of overreaching on an issue that the average voter cares about, deeply. People might be able to rationalize supporting same-sex marriage by telling themselves that, even if it’s not their thing, it makes no difference to them what gay couples do. But if you’re a woman using the locker room at the gym, it might matter quite a lot if a man who says he’s a woman on the inside is using the shower next to you. …

We have reached a bizarre moment in our politics, where the “progressive” left resists having conservative speakers on a college campus because they make students feel “unsafe,” but insists that boys who identify as girls be allowed to shower with girls in the public schools, and misgivings must be educated away, or litigated into submission.

And from The Federalist:

When liberal Houston — a city with a three-term lesbian mayor — overwhelming rejected an anti-discrimination ordinance for the transgendered (among others), a hysterical New York Times editorial accused voters of being transphobic hate mongers with blood on their hands.

Boycott Houston!

If, as LGBT activists believe, bakers and caterers (and photographers and wedding planners) must take all assignments, even those they find morally disagreeable, is the same true of printers?

As the Cato Institute’s Ilya Shapiro writes on the Cato at Liberty blog:

Hands On Originals, a t-shirt printing company in Kentucky, refused to print t-shirts promoting a gay-pride event, the Lexington Pride Festival. Its owners weren’t objecting to any customers’ sexual orientation; instead, they objected only to the ideological message conveyed by the shirts.

The Gay and Lesbian Services Organization nevertheless filed a complaint with the Lexington-Fayette Urban County Human Rights Commission under an antidiscrimination ordinance that bans public accommodations from discriminating against individuals based on sexual orientation.

While the Commission ruled against the printers, the state district court reversed on free speech and free exercise grounds. The case is now before the Kentucky Court of Appeals, where Cato filed an amicus brief.

The case raises a number of interesting parallels: should a gay printer be forced to print anti-gay Christian Reconstructionist literature? Should a Jewish printer be forced to publish anti-Semitic tracts?

While some LGBT advocates of the “they will now do our bidding” school would probably argue No (see, completely different, no comparison whatsoever), others who are more honest might say Yes, since business providers have no right to accept or reject any job they are offered. As Cato’s Walter Olson noted, “Many advocates of the anti-discrimination principle appear to believe that it trumps virtually any other liberty or value.”

More. The Washington Examiner reports this week, citing research by the Barna Group:

…the percentage of all millennials who are “very concerned” about additional restrictions on religious freedoms in the next five years has increased 10 percentage points since 2012, to 25 percent.

In August, the Examiner cited research by Caddell Associates, which found that:

Americans reacting to the Supreme Court’s approval of same sex marriage desire a truce between religious freedom and gay rights, but if pushed, overwhelmingly side with protecting the liberty of their faith by a margin of 4 to 1, according to a new national survey.

The degree of their fierce support for religious freedom and liberty jumps when given this choice: “Suppose a Christian wedding photographer has deeply held religious beliefs opposing same sex marriage. If a same sex couple wanted to hire the photographer for their wedding, should the photographer have the right to say no?”

A huge 82 percent said yes.

Given the backlash against high-handed political correctness that’s gaining steam, these findings should be a warning to the “they will now do our bidding” school of activism.

The Washington Post‘s Civilities columnist Steven Petrow looks at the case of a gay male couple that was asked to leave Louie’s Sports Bar & Tiki Bar in Fayetteville, N.C., by the bar’s female owner. The incident: Around 11 p.m. on a late summer night, Andrew Deras put his arm around his boyfriend Dustin Baker and gave him what he later described as a “very minor” kiss.

Noting a few similar incidents, “Could the kiss be the next big milestone in LGBT rights?,” Petrow asks.

In the comments below the article on the Post‘s website, one commenter said:

Of course this has to be litigated. The Equal Protection clause of the Constitution means that gays can do the same things as straights in public.

Others pointed to the need for new, rigorous anti-discrimination legislation, to which another commenter responded:

As a gay Libertarian, I have regularly parted ways with the activist-type gays who always want a new law… and when they get that new law, they want another new law, and another and another and another…..You don’t like that bar that threw out the gay couple for kissing? Then boycott the bar and shine the light of bad publicity upon them.

Other commenters quickly chimed in that such a viewpoint was no different than sanctioning Jim Crow segregation against African Americans.

Not long ago, I referenced a fine analysis by John Corvino on the differences between anti-gay discrimination by a smattering of private small businesses in 2015 and systemic, frequently state-imposed racial discrimination in the pre-civil-rights South. And it’s no surprise that I’d rather see civil action against establishments that discriminate over unequal public displays of affection than lawsuits and state-administered punishments.

Along those lines, Scott Shackford has an updated version of his Is this where gays and libertarians part ways? piece is in the November issue of Reason, now online. An excerpt:

[W]e have little reason to believe that most people want to discriminate against gay, lesbian, or transgender customers. The burden created by those who do is remarkably small and can be remedied without government intervention. …

Libertarians care more about restraining government authority over the individual than allegiance to anybody’s “side.” Support for the rights of religious conservatives to discriminate should not be taken as endorsement or encouragement for their goals or moral framework.

As a gay libertarian, I support the right of a baker to decline to produce a wedding cake for a same-sex couple, but don’t expect me to buy so much as a cookie at their shop. And now that government-enforced oppression and discrimination is ending, I’d much rather see my peers embrace a world where we are all equally free to decide the terms by which we deal with each other, not one where we seize the same government powers that were once used to abuse us and use them to pummel our ideological opponents.

With congressional Democrats’ introduction last week of the Equality Act, ENDA (the Employee Non-Discrimination Act) is officially dead. The previous bill, which targeted employment discrimination, had a long, sad history—just when it seemed to have enough bipartisan support to pass, a number of influential activists organizations announced their opposition because the measure didn’t include gender identity along with sexual orientation. Later, when gender identity was added, it was too much for the bill’s GOP (and centrist Democratic) supporters, at that time. The strategy of step by step, first one, than the other, was never viewed as acceptable by some activists.

In any event, during the first two years of the Obama administration, when Democrats enjoyed filibuster-proof majorities in Congresss, ENDA was kept bottled up in committee; only after the GOP retook the House in midterm elections did Democrats moved to bring the bill back to life.

The Equality Act seeks to amend the iconic Civil Rights Act 1964 to include sexual orientation and gender identity, in employment, housing, education, jury service(!) and public accommodations, with no religious exemptions for businesses such as wedding caterers and photographers to pass on gigs involving gay marriages. It has zero chance of passing Congress, dominated by the GOP. That’s not the point; Democrats will use it to rally LGBT and progressive support in coming elections.

Yet some LGBT activists are not united in support; some fear that opening the Civil Rights Act to amendments could be dangerous, allowing Republicans to introduce their own amendments to weaken, for instance, race- and gender-based preferential treatment and the use of disparate impact analysis to find discrimination where none was intended. It’s unclear that there is evidence Republicans would try to do that (the attacks upon them by liberal media would be merciless), but that’s the stated concern.

So don’t expect the Equality Act to become law anytime soon, or perhaps ever. But keep a lookout for fundraising letters from its supporters coming to your mailbox shortly.