ENDA — the Employment Non-Discrimination Act of 2013 is probably one of the most Orwellian pieces of legislation ever to receive bipartisan approval in the Senate. It claims to prohibit hiring and employment discrimination on the basis of sexual orientation or gender identity. But it would more likely result in massive expansion of government power by opening up a huge can of legal worms most directly related to “gender identity.” Gender identity is an ambiguous term that relates to people’s perceptions and feelings. By adding it to the list of categories in anti-discrimination law, ENDA combines threat of punishment with vague language that is wide open to interpretation. This is a classic recipe for tyranny.
Consider first ENDA’s definition of “gender identity”:
The term ‘gender identity’ means 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.
The issue of definition here is significant. Let’s look separately at the terms “gender” and “gender identity.” Gender identity does not simply refer to male or female. It’s all about perceptions and behaviors and feelings and one’s “internal, personal sense” of being male or female, or, in some cases, “other.” It’s also reactive against any social or cultural norms that assume people are either one sex or the other.
But the ENDA legislation does not define “gender” for us at all. Neither does the reference glossary of the Gay and Lesbian Alliance against Defamation (GLAAD), a strong supporter of ENDA, or some other advocacy groups who support ENDA. According to Merriam-Webster, “gender” (beyond the grammar definition) is defined as “the behavioral, cultural, or psychological traits typically associated with one sex.” Other dictionaries define gender simply as “sex,” as in “the female gender.”
GLAAD’s definition of gender identity remains fairly tame (for now):
Gender Identity: One’s internal, personal sense of being a man or a woman (or a boy or a girl). For transgender people, their birth-assigned sex and their own internal sense of gender identity do not match.
GLAAD’s definition appears on the surface to accept a dualistic outlook on gender identity — that people identify as either male or female. But the second phrase is incomplete, because it repeats the term “gender identity” without ever explaining exactly what it means.
The definition of gender identity in Wikipedia, which is attributed to the 7th edition of GLAAD’s Media Advisory Guide and has received widespread acceptance among other advocacy groups is this: “self-identification as woman, man, neither, or both.”
According to the American Psychological Association, gender identity is one’s identification as “male, female, or transgender.” And in its definition of transgender, the APA states: “gender identity refers to a person’s internal sense of being male, female, or something else.” So here we see in the definitions the nearly complete divorce between gender (male or female) and gender identity (male or female, both male and female, or “something else,” something completely different). Does Congress have any hint of the chaos it sows with the prospect of forcing employers to deal with the mysteries of “something else,” whatever that might be?
There are five clues to the Orwellian nature of ENDA’s language.
ENDA’s use of the word “perceived”
A key phrase repeated over a dozen times in ENDA legislation is that discrimination is prohibited on the basis of “an individual’s actual or perceived sexual orientation or gender identity.” We need to pay attention.
First we ought to ask: what is meant by the word “perceived”? Perceived by whom? The syntax in the legislation is not clear. It could be the beholder or employer doing the perceiving. But the use of the possessive case suggests it is the individual’s perceived sexual orientation or gender identity. Either way, there is dangerous ambiguity in ENDA’s use of language that sets up a legal framework that singles out — either for punishment or special protection — personal perceptions.
When a plaintiff swears that an employer’s perceptions are malicious, how does the employer defend himself? Is accusing an employer of “perceptions” enough to insist on punitive damages? On the other hand, if the law purports to protect our self-perceptions, then we’re still on a shaky foundation. Self-perceptions can change over time and can be based on many different factors. There are over seven billion self-perceptions on the planet, each one of them complex. It doesn’t really matter how many of them feel a need or an all-encompassing right to present to the world as a different gender. Feelings change. One’s sense of identity can change. Any law that’s set up to protect or punish perceptions is suspect and very conducive to abuse.
Thus ENDA offers boundless possibilities for thought policing in the workplace and society at large. And it opens the door to endless litigation against employers. If ever there was an efficient way for government to impose itself on any entity daring to operate a free enterprise, ENDA leads the way. In fact, ENDA’s potential for government heavy-handedness over the private sector is strong enough that one might reasonably conclude that ENDA has very little to do with “protecting” anybody. It’s nothing but a scheme to expand big government, which, by the way, seems to be having an identity crisis of its own.
Gender identity is the only protected form of perceived identity in anti-discrimination law
However protean your perception of your gender may be, ENDA claims to give special status to that sense of identity.
So, what gives? Why is gender identity the only new category of self-perception in non-discrimination? There is no mention of any of your other identities in the bill.
One could easily argue that “age identity” is a far more widespread concern. Some 60-year-olds no doubt identify as 40, no matter their age “designated at birth.” They could follow the ENDA logic to claim they suffer age discrimination in the workplace. Why aren’t schools guilty of discrimination keeping some 12-year-olds who identify as 18, or perhaps as 8, wasting away in middle school classrooms?
Lots of people don’t appreciate being stuck in one type of racial identity or national origin identification either. If one “feels” or “identifies” as Native American or African American, regardless of genetic make-up, why shouldn’t that person get full protection of anti-discrimination law according to ENDA’s logic?
But this legislation (nor any standing law) would not protect any other sense of identity or self-perception. Protecting these other “perceptions” should immediately strike us irrational. So maybe we should consider the idea that self-identities are neither legitimately protected by default nor punished by law.
ENDA defines the term “gender identity” in a way that sets the stage for more social classifications, labeling, and divisions.
Also troubling is the vast new labyrinth of identities and terminologies associated with sexual orientation and gender identity. The internet is loaded with the glossaries of advocacy groups offering us help in understanding the many ways gender identity manifests itself. One can only wonder if this encourages semantic contagion or susceptibility to memes in people who would have never thought about taking on various gender identities if they hadn’t been exposed to the suggestions.
Transgender advocacy groups seem to hold very high and specific requirements and expectations from the public and media in terms of how they expect to be understood and treated. GLAAD’s Media Advisory Guide contains a long checklist of “do’s and don’t’s” when one is talking to or referring to a transgender person. Pronouns of course are a very touchy subject, and mistakes may only be forgiven if perceived to be sincere. Other lists are put out by various advocacy groups, including Transgender Equality, the Human Rights Campaign, Gender Spectrum and a Cal Berkeley group to name but a very few.
Simply put, ENDA will push employers and all members of society to adhere to strict and ever-changing requirements of linguistic gymnastics. They are reminiscent of Orwellian Newspeak, opening up a huge matrix of possibilities and imposing a complex set of behavioral expectations to which we must adhere for each new “category” in the matrix. This is an invitation to ever growing state enforcement of the latest politically correct whim.
Major problems with the term “sex designated at birth”
The use of the term “sex designated at birth,” suggests a malleability of the term “sex” (heretofore male or female) equivalent to that of “gender-related identity.”
Let’s also consider the word “designated.” At first glance it seems like a basic use of the term to mean simply “listed” or “attributed.” When the infant was born, the sexual characteristics were identified as either male or female. It was the child’s “sex designated at birth,” to use ENDA’s language and the language of myriad other gender identity anti-discrimination laws enacted in various states and municipalities across the country. The APA uses the term “assigned at birth,” and so do several of the jurisdictions that have adopted such laws.
But we should stop and seriously ask ourselves if the usage of this term is likely to evolve and take on a new meaning. Could “assigned at birth” or “designated at birth” ever come to mean that our sex — not just our gender — is assigned to us? Or designated for us? Well, if you’re familiar with the work of gender theorists like Judith Butler and others held in high esteem by advocates of ENDA, you know the endgame is the abolition of all sex/gender distinctions. So the possible use of such language to control us isn’t really all that far-fetched.
Blanket use of the terms “appearance and mannerism”
ENDA gives a blanket use of the terms “appearance” and “mannerism” which appears to allow the government to rule out discrimination based on any sexually oriented appearance or mannerism at all.
No distinctions appear to be allowed. Anything goes, really. It’s disingenuous to believe that employers will have any final say in their office decorum or dress codes once ENDA goes into effect. There’s a section in the legislation stating that matters of “grooming” that are “reasonable” are still up to the employer to decide. But in reality this law leaves it up to judges, bureaucrats, and trial lawyers to decide what is and what isn’t appropriate for any given employer’s business. A mannerism that requires someone’s gender identity to repeatedly say (respectfully, of course) “Yeah, baby!” or wear any manner of distracting apparel? Protected!
It’s naive to believe — at this stage of modern history — that protecting such behavior is beyond the scope of ENDA. The collection of bizarre legal outcomes that one can see resulting from this legislation, all guided by an ever expanding state, all counter-intuitive and counter-productive, should be a matter of concern to all of us.
Objecting to ENDA is not a “socially conservative” position. It is an existential position. Those who sign on to this bill ought to understand that it stands for the un-defining of sex/gender for every American, not just those with different perceptions of their own gender.
The dangers in this kind of legislation are not widely understood. Yet here we are on the precipice. In fact, the enactment of gender identity laws has been happening under the radar for many years, even outpacing same sex marriage legislation. They’ve already passed in 16 states, the District of Columbia, and 143 municipalities throughout the nation. The media is saturated with testimonials of transgender beauty queens, toddlers, and military service members. We likely wouldn’t have heard much from Chastity Bono if she never decided to identify as male and take the name Chaz. Consider one woman-to-man transgender underwent a double mastectomy and took hormones but kept her reproductive organs intact so she could have children. Oprah Winfrey introduced this mother as “the first pregnant man.”
If you are an advocate of unlimited government expansion, ENDA is your man, so to speak. It offers a new definition of gender that empowers the state at the expense of the individual. It drives a stake through the heart of what it means to be human by legally redefining – or more accurately, undefining – the humanity of us all. Under the guise of “protection” for some, it defines us all, according to a malleable lexicon, giving the government the final say in controlling and interpreting it.
The Orwellian language of the legislation requires that we all accept the definition of gender as a social construct. Everyone has a gender identity, according to ENDA’s proponents. Most of us have one that matches our “sex designated at birth.” But legally and linguistically, ENDA would not permit us to define our own gender identity as biological fact.
It represents a whole new gag order and sets up a society filled with smoke and mirrors. The implications for social engineering are beyond vast. They are limitless and can be enforced by the whim of the state.
So if ENDA passes both houses of Congress, it will enshrine in law new forms of discrimination against wide swaths of Americans. The bill is packed with threat of discrimination against anyone who holds a traditional view of marriage, family, sex, and “gender identity.” Its conscience provisions are flimsy and confining, as conscience protections tend to be these days. ENDA promises to set up a whole new extortion racket against businesses that don’t play ball with the government and its “enlightened” view of gender chaos.
In the end, ENDA is legislation of the government, by the government, and for the government.
Stella Morabito writes on society, culture, and education.
Copyright © 2016 The Federalist, a wholly independent division of FDRLST Media, All Rights Reserved.