Earlier this week, the Heritage Foundation released an important report on Sexual Orientation and Gender Identity laws, written by Ryan T. Anderson.

SOGI laws typically provide LGBT persons legal protections similar those granted to racial minorities and women. Utah has enacted SOGI legislation that, includes religious exemptions intended to provide (as the legislation is named) “Fairness for All.” The Utah law is being treated as a model for other states’ legislation.

But “Fairness for All” is a misnomer. Claiming to be win-win, SOGI laws are in fact uniformly win-lose, for as Anderson says, they “penalize many Americans who believe that we are created male and female and that male and female are created for each other — convictions that the Supreme Court of the United States, in Obergefell v. Hodges, recognized are held ‘in good faith by reasonable and sincere people here and around the world.”

Unnecessary Legislation

The problem begins with assuming these laws are needed in the first place. Since “SOGI laws change the status quo and impose new penalties on people (in same cases, jail time),” that’s not an assumption we should simply take for granted.

The problem begins with assuming these laws are needed in the first place.

LGBT people have admittedly in the past suffered unjust discrimination, but currently “there is no widespread heterosexual supremacy akin to white supremacy.” Indeed, LGBT persons and couples have higher median incomes than their heterosexual counterparts. Protections against discrimination already exist within the policies of 89 percent of Fortune 500 companies. Public relations effects can be counted on to limit other companies’ discriminatory actions.

So government action is hardly needed. Anderson quotes Professor Andrew Koppelman, an LGBT advocate, saying,

Hardly any of these cases [denial of services to LGBT people] have occurred: a handful in a country of 300 million people. In all of them, the people [involved] were asked directly to facilitate same-sex relationships, by providing wedding, adoption, or artificial insemination services, counseling, or rental of bedrooms. There have been no claims of a right to simply refuse to deal with gay people.

“The fact is,” says Anderson, “that the strongest grounds for enacting policy to ensure that people who identify as LGBT have access to basic services are rare to vanishing.” Yet laws exist, and proposals for more are proliferating. Bakers, florists and photographers are being punished, even though these cases have not diminished “a single person or couple’s range of opportunities for room, board, or entertainment.”

Well-Tailored Definitions and Distinctions are Lacking

Not all discrimination is unjust or invidious; therefore not all discrimination should be branded unlawful.

Anderson makes a careful distinction between refusing service to gay persons (which has not been known to happen) and refusing to support institutions such as gay marriage for reasons of conscience and/or religious belief. SOGI laws typically fail in making that distinction.

That is not to deny that LGBT persons may have some legitimate needs for legal protection as a class. “Any policy response,” however, “must be appropriately tailored … so that it can address the problem without unnecessarily burdening others.” A SOGI law that was enacted in Houston, then repealed by voters, would have covered every “inch of the public square” with “costs to conscience, pluralism and speech.” This is hardly appropriate tailoring.

SOGI laws also fail to define “discrimination” carefully enough. Not all discrimination is unjust or invidious; therefore not all discrimination should be branded unlawful. Title IX provides for separate housing, bathrooms and locker rooms for men and women. This is sex-based discrimination, but its effect is to ensure rather than to prevent equal opportunity for the sexes.

’Religious Freedom’ Exemptions Still Don’t Justify SOGI Laws

Religious freedom exemptions fail to accomplish the desired “Fairness for All.” They provide no protection for persons of faith operating in non-religious business contexts. They tend instead to reinforce coercion against conscience. Says Anderson:

While such proposals may have some superficially appealing aspects, they would only increase cultural tensions, further empower an already powerful special-interest lobby, and impose unjustly on Americans of many different faiths and all walks of life. Big Business and Big Law are using Big Government to impose their cultural values on small businesses and ordinary Americans. Corporate elites are using their privilege in positions of power to have government coerce people whose convictions on matters of profound moral import differ from theirs.

Conclusion

Anderson concludes by urging that in cases where LGBT persons experience needs “significant enough to warrant government attention,” policy solutions must:

• be nuanced and narrowly tailored to address the documented needs;
• employ accurately defined terms to avoid punishing good actions and interactions; and
• respect the rights of conscience, religion and speech.