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Factsheet #130

October 30, 2013

ENDA Threatens Fundamental Civil Liberties

What ENDA Does

  • The Employment Non-Discrimination Act (ENDA) (S. 815) creates special privileges based on sexual orientation and gender identity. It would make it illegal for organizations with 15 or more employees to “fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual … because of such individual’s actual or perceived sexual orientation or gender identity.”
  • ENDA defines “gender identity” as “the gender-related identity, appearance, or mannerisms … of an individual, with or without regard to the individual’s designated sex at birth.” In other words, it creates special rights for transgendered individuals—males who dress and act as females, and females who dress and act as males—and forbids employers from considering the consequences of such behavior at the workplace.

Problems with ENDA

  • Employers should respect the intrinsic dignity of all their employees, but ENDA is bad public policy.
  • Concerns about ENDA unite civil libertarians concerned about free speech and religious liberty, free marketers concerned about freedom of contract and government interference in the marketplace, and social conservatives concerned about marriage and culture.
  • Civil Liberties. ENDA tramples fundamental civil liberties and unnecessarily impinges on citizens’ right to run their businesses the way they choose. Individuals should be free to form associations and contracts according to their own beliefs and should not be coerced into accepting the federal government’s set of values.
  • Free Market. ENDA would further increase federal government interference in labor markets, potentially discouraging job creation. ENDA does not protect equality before the law, but creates special privileges that are enforceable against private actors. It would impose liability on employers for alleged “discrimination” based on subjective, self-disclosed identities and not on objective employee traits.
  • Social. ENDA would further weaken the marriage culture and the ability of civil society to affirm that marriage is the union of a man and a woman, and that maleness and femaleness are not arbitrary constructs but objective ways of being human. ENDA would treat these moral convictions as if they were bigotry.

Sexual Orientation and Gender Identity Are Unlike Race

  • Jim Crow laws represented pervasive, onerous, and legally enshrined obstacles to employment based on race. There is no similar history of society-wide legal prohibitions on employment based on sexual orientation or gender identity.
  • Voluntary actions and market forces have emerged that undermine the clamor for federal intervention: for example, 88percent of Fortune 500 companies prohibit employment decisions based on sexual orientation.
  • While race is usually readily apparent, the groups seeking special status under ENDA are not defined by objective characteristics. Sexual orientation and gender identity are commonly understood to be subjective, self-disclosed, and self-defined.
  • Unlike race, sexual orientation and gender identity are usually understood to include behaviors. Decisions reasonably taking into account the behavior of employees are core employment decisions, best left to businesses themselves—not the federal government.

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