"Sexual Orientation" Could Include Pedophiles!
This argument makes me want to scream and throw up my hands. However, I have found that screaming and throwing up my hands tends to reduce the effectiveness of my argument, so I don't do it any more. Besides, this is an argument with amazing staying power.
Silly as it may seem, we will need to patiently explain it to people over and over and over again: homosexuality is different from pedophilia. That means they are not the same.
The pedophilia argument only makes sense if you substitute other words for the actual words in ENDA, like changing "sexual orientation" to "sexual preference" or "sexual lifestyle." Or if you think that homosexuality means pedophilia. Words do count in the law, and if you don't know what they mean, then, yes, you can make them mean anything. Which is how "living wills" became "death panels." Life and death, you know, two sides of the same coin, eh? Ah, actually, not.
Seriously, this is like arguing that laws protecting against race discrimination will include race car drivers.
But lest you think that only very silly people can raise such concerns, here's part of a letter from Representative Howard Coble, 6th District of North Carolina:
This bill has become mired in controversy over definitions of discrimination and the individuals covered. As a result, the bill was not enacted and expired at the conclusion of the 110th Congress.
We remained concerned that creating new constitutionally protected classes will undermind (sic) existing equal protection laws. We are also concerned that forcing employees to pursue discrimination claims in feeral (sic) court could actually prevent many possible victims from asserting their rights. Finally, many employers who support nondiscrimination policies oppose ENDA because it will create new uncertain legal liabilities.
And here's a letter from Congressman Bill Young of Florida:
From: Congressman Bill Young
Sent: Wednesday, July 8, 2009 4:54:50 PM
Subject: Re: Please Co-Sponsor the Employment Non-Discrimination Act
July 8, 2009
...While I feel that discrimination in the workplace should not be tolerated in any capacity, I was unable to support this particular version of ENDA because it failed to define the term "perceived" sexual orientation, nor does the Civil Rights Act of 1964 include or define that term, and that the inclusion of a vague term would have led to uncertainty and increased litigation.
"Homosexuality" Is A Secret Reference to "Homosexuals"
Okay, let's take this one at a time - controversy over definitions and the individuals covered. What are these Congressmen talking about? Well, they're trying to say something without quite saying it because it's so silly.
They're talking about pedophiles. They are unwilling to actually state the argument they're talking about, because it is so ridiculous. Here's some who are willing to state it outright, The Concerned Women for America: "While pedophiles are neither expressly included in nor excluded from ENDA's provisions, they will have a conceivable argument for special protection as homosexuals who merely prefer younger partners."
Ah, no, actually, there is no such conceivable argument, not one that makes any sense.
Here is what the bill actually says in Section 3(a)(9):
(9) SEXUAL ORIENTATION- The term `sexual orientation' means homosexuality, heterosexuality, or bisexuality.
Nothing in there about sexual preference for children. No goats or other beasts of the field. The terms "homosexuality, heterosexuality or bisexuality" are quite well-defined, and are quite distinct from vague phrases like "sexual preference," "sexual lifestyle," or "sexual goatstyle." Does it include pedophiles? Does it involve bestiality or marrying your uncle? Does it include people who like dirty pictures? No, no, and no.
Here's the Oxford English Dictionary definition of homosexual as a noun: "A person who has a sexual propensity for his or her own sex; esp. one whose sexual desires are directed wholly or largely towards people of the same sex."
Interesting that a couple of lines down, the definition includes the following: "homosexual panic n. orig. Psychol. (chiefly among men) uncontrollable fear or anxiety as a reaction to one's own or another's homosexuality."
Oh, what's that? You don't like them foreign dictionaries? How about the American Heritage Dictionary? What could be more American than that? It says: " Of, relating to, or having a sexual orientation to persons of the same sex."
This reminds me of the flap over the Americans With Disabilities Act in the late 80s. Senator Jesse Helms was afraid that prohibiting discrimination against people with disabilities might include homosexuals and pedophiles and transsexuals. They were going to hold up the entire bill to help people with disabilities because of this homosexual panic.
Helms made them include the following ridiculous provisions:
Sec. 12211. Definitions
(a) Homosexuality and bisexuality
For purposes of the definition of "disability" in section
2102(2) of this title, homosexuality and bisexuality are not
impairments and as such are not disabilities under this chapter.
(b) Certain conditions
Under this chapter, the term "disability" shall not include -
(1) transvestism, transsexualism, pedophilia, exhibitionism,
voyeurism, gender identity disorders not resulting from physical
impairments, or other sexual behavior disorders;
(2) compulsive gambling, kleptomania, or pyromania; or
(3) psychoactive substance use disorders resulting from current
illegal use of drugs.
Was "homosexuality" further defined in the ADA? No. There was no concern at that time over whether it was clear enough what "homosexuality" meant. In fact, none of the terms, including "gender identity," were defined there. It was clear enough to Senator Jesse Helms what these things meant then. It should be clear enough now.
In addition, Senator Helm's language clearly distinguished homosexuality and pedophilia as separate categories, as both were included separately. If they were the same thing, then they wouldn't need to be stated separately.
What Is Pedophilia?
Pedophilia refers to those who are sexually aroused by the thought of sex with prepubescent children, a reference to children under 13 years of age. (See ICD Section F65.4). This is a concept quite different from that of sexual orientation, the desire for a romantic partner of a particular sex. Researchers have been unable to identify the prevalence of pedophilia in the US population. A 2007 article in the Mayo Clinic Proceedings (82(4):457-471) implies that unwanted sexual touching of young females is twice as prevalent as among young males.
Beyond the social and moral, there is a particularly important legal distinction between pedophilia and homosexuality - the first is illegal and the second is not. Much could be written on this topic, but someone who engages in pedophilia is committing the crime of sexual assault, whereas being gay with another consensual adult is not criminal behavior.
ENDA only prohibits sexual orientation job discrimination if it is based on one's sexual orientation, but does not do so if the employer bases it on one's predilection for a criminal behavior, such as sex with children. The same would hold true whether the employee's pedophilia extended to children of the same sex, opposite sex or both.
Is It Possible To Interpret "Perceived" Sexual Orientation As Extending to Pedophiles? Answer: No.
The "perceived" language that Rep. Young fears is so undefined and will result in a flood of lawsuits is similar to the "regarded as" language used in the Americans With Disabilities Act. Many courts have looked at such provisions before, many times, in both disability statutes and state civil rights statutes, and never found the meaning of "homosexual" to be vague or ambiguous. The "perceived" language is also used in many state statutes that prohibit sexual orientation discrimination, such as California. The intent of this language is to prohibit a defense based on the argument that the employee is not, in fact, gay, and therefore, no anti-gay discrimination could have taken place. The "perception" must be one that refers to the person's "sexual orientation," not their "sexual preferences" for children, goats, or whatever. It makes no sense to argue that "sexual orientation" discrimination includes pedophiles.
The Supreme Court of Washington addressed this issue a few years ago in the context of same sex marriage, with one of the Justices lambasting "the astonishing and scientifically faulty notion that homosexuals are often pedophiles." In that 2006 case, Andersen v. King County, Justice Bridge criticized unscientific testimony from the "Family Council," relaying abstracts of biased studies purporting to find that a high percentage of gay men are pedophiles. As Justice Bridge stated, "In fact, this corrosive stereotype has been debunked by noted experts in the field of psychology and in courts alike," citing Marc E. Elovitz, Adoption by Lesbian and Gay People: The Use and Mis-Use of Social Science Research, 2 DUKE J. GENDER L. & POL'Y 207, 216-17 & n.55 (1995) (citing Gregory M. Herek, Myths About Sexual Orientation: A Lawyer's Guide to Social Science Research, 1 LAW & SEXUALITY 133, 156 (1991)). She also quoted the New Jersey Supreme Court, which found, in Dale v. Boy Scouts of Am., 160 N.J. 562, 734 A.2d 1196, 1243 (1999), rev'd on other grounds, 530 U.S. 640, 120 S.Ct. 2446, 147 L.Ed.2d 554 (2000), that "The myth that a homosexual male is more likely than a heterosexual male to molest children has been demolished."
Will There Be A Flood of Lawsuits? Answer: No
Will there be a flood of lawsuits? Looking to one of the largest states with the strongest protection from sexual orientation job discrimination, the experience of California shows that there is not likely to be a flood of lawsuits.
How many sexual orientation lawsuits did California have last year? 821 for a population of 37 million. Let's see, that's 1 case for every 46,000 people. It was also 4% of the 18,785 discrimination cases in California that year. More like a trickle than a flood, seems to me. There's no flood of sexual orientation discrimination litigation gonna bust out over America, overwhelming the EEOC and carrying hapless Congressmembers downstream.
You Are Feeling Sleeeepy
These arguments make so little sense that it's confusing even to hear them being made, let alone try to think them through. It's like those trick questions where all the answers are wrong, and the answer is actually "none of the above," but you naturally assume that one of the answers written out for you must be correct.
Congressman Coble's letter contains the following nonsensical phrase: "We are also concerned that forcing employees to pursue discrimination claims in feeral [sic] court could actually prevent many possible victims from asserting their rights."
So let's see if I understand this. You're saying you're terribly worried about gay employees, and think a federal civil rights bill is going to prevent those poor souls from raising civil rights claims in state court? But there have been both federal and state civil rights laws on the books since the 1960s, and no one's been precluded from raising civil rights cases in state courts. There's no provision in ENDA that would seem to force employees to use federal courts if there is a parallel state law. Where are you getting this idea that ENDA will prevent protection of LGBT employees? Maybe....you're confused?
I think actually that is it. They are confused. They don't get it, and they don't want to get it, and they're going to keep raising the specter of loose definitions that include pedophiles and a flood of litigation about what "sexual orientation" means when, in fact, states have had similar laws for decades with neither of these concerns coming even close to a glimmer of daylight.
These arguments are set out in more formal language, with citations and everything, in the Senate Report 107-341 - EMPLOYMENT NON-DISCRIMINATION ACT OF 2001.
There are more frightening memes that the right-wing is seizing upon in arguing against ENDA. There are not only pedophiles and goats and your uncles, but also...gasp...gender identity! No decoding needed there - transsexuals may be scarier than pedophiles. And they're coming to take away your Bibles! But I think we've covered enough for today.