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SPRIGG: ENDA sanity?

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The House of Representatives may act soon on a bill to marginalize and stigmatize Americans who disapprove of homosexual conduct. H.R. 3017, known as ENDA, seeks to give homosexuals (and the government) the right to sue employers, based on the theory that being gay is like being black (even though homosexuality is a matter of conduct, not race), female (even though homosexuals were never denied the right to vote), or religious (even though sexual preferences are not in the Constitution).

The business community has failed to mobilize on a large scale against this intrusion into their right to set their own standards for employment, largely because most large, secular employers do not make a practice of inquiring into the sexual practices of their employees in the first place. There is no evidence that homosexuals have unusual difficulty in finding employment, nor that such laws on the local or state levels have improved their economic situation.

The relative indifference many employers have toward homosexual employees is due (apart from a few stereotypes) to an invisible characteristic, and the behavior that defines the class - men having sex with men or women having sex with women - that is something that takes place predominantly in private, not in the workplace or on work hours.

However, ENDA also contains within it another radical provision that may be its Achilles' heel. It includes within the orbit of its special protections not only sexual orientation, but also gender identity.

Gender identity does not simply mean gender, which most people would consider synonymous with sex (i.e., being male or female). Discrimination based on sex was banned 46 years ago, in the Civil Rights Act of 1964.

No, gender identity is defined in H.R. 3017 as the gender-related identity, appearance or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual's designated sex at birth.

Got that? According to the advocates of ENDA, homosexuality (the desire to have sex with others of the same sex) is something present in infants at birth (although this has been disproven scientifically). But one's sex (male or female), which in truth can be determined by examination of the genitals or of the chromosomes of any cell in the body, is to their minds, merely designated at birth, like the name the parents pick out.

Special protections based on gender identity mean that employers will be forced to hire transvestites (cross-dressers, who merely wear the clothing of the opposite sex); transsexuals (people who have undergone surgery and other medical treatments to obliterate the characteristics of their birth sex and imitate the characteristics of the opposite sex); and drag queens and kings (people who dress as the opposite sex for the purpose of entertaining themselves or others). All of these groups together are now typically referred to with the umbrella term "transgendered."

Unlike sexual orientation, gender identity is by definition a visible characteristic, involving appearance, or mannerisms. And with transgenders, the behavior that characterizes the class - dressing and presenting oneself as the opposite of one's biological sex - is by definition something practiced in public, in the workplace and during work hours. In fact, the right to do so is exactly what transgender activists seek to secure through ENDA.

A legitimate concern for privacy allows employers to maintain separate facilities for men and women when it comes to restrooms, locker rooms and showers. But what happens when a man in a dress insists he has a right to use the women's room? Many women might feel justifiably uncomfortable, or even threatened, at such a prospect. ENDA carves out an exemption for shared shower or dressing facilities in which being seen unclothed is unavoidable - but that still might not apply to restrooms with stalls. This is why similar bills in a number of states and localities have been tagged bathroom bills.

In addition, there are many jobs for which personal appearance is a legitimate and relevant characteristic. Yet even Anne Lawrence, a male-to-female transgender who has written several academic papers on the issue, has admitted that many transgendered people do not make a convincing appearance in their chosen gender identity. It is simply inevitable that when they see a brawny 6' 2" man with broad shoulders, large hands, large feet, a protruding Adam's apple, facial stubble, and a deep voice wearing high heels, pantyhose and a skirt, many customers or clients may be put off. An employer should not be forced to ignore this risk.

Dr. Paul McHugh, the psychiatrist who called a halt to sex-change surgeries at Johns Hopkins University Hospital, has written, "We have wasted scientific and technical resources and damaged our professional credibility by collaborating with madness rather than trying to study, cure and ultimately prevent it." Congress should not collaborate with this madness either.

Peter Sprigg is a senior fellow for policy studies at the Family Research Council.

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