Spring 2018 – Shields Not Swords
Anderson, Ryan T., Shields, Not Swords (March 21, 2018). National Affairs, Number 35, Spring 2018. Available at SSRN: https://ssrn.com/abstract=3141908
If an anti-discrimination policy is needed in a certain context to protect citizens from mistreatment that hampers their full participation in civil society, such policies ought to be understood as shields, not swords. Any response to help citizens meet their needs must not unduly impede other people’s basic rights, including the freedoms of speech, association, and religion. But sexual-orientation and gender-identity (SOGI) policies are now often being used as swords to “punish the wicked,” as Tim Gill (their biggest financial backer) has put it. Policies intended to allow people who identify as LGBT to meet their needs are being used illiberally, to impose a new sexual orthodoxy on the nation. As Americans continue to disagree about sex and marriage, we must find ways to help citizens meet their needs without weaponizing the redefinitions of marriage, sex, and gender in ways that would prevent other citizens from exercising their rights and meeting their own needs.
We shouldn’t simply assume that the best policy for protecting LGBT individuals is to add the phrase “sexual orientation and gender identity” to existing laws crafted to respond to racism and sexism, as SOGI laws do. Rather, lawmakers must carefully specify what constitutes “discrimination” on the basis of “sexual orientation” and “gender identity,” so as to avoid punishing innocent actions and interactions. They should carefully consider which entities to regulate, so as to keep burdens to a minimum. And they should accommodate freedoms of speech, association, and religion. On each of these dimensions, our law has treated racial discrimination differently from sex-based discrimination, and with good reasons. Our laws have also drawn complex and sophisticated distinctions in protecting religious liberty. Thinking through these differences can help us draw some distinctions that will be useful to thinking about SOGI laws, and help us reverse and avoid some key mistakes.
Anti-gay and anti-transgender bigotry exists and should be condemned. But support for marriage defined as the union of husband and wife isn’t anti-gay. Nor is the conviction that sex is a biological reality anti-transgender. Just as we’ve combatted sexism without treating pro-life medicine as sexist, we should make sure that any public policy necessary to help people who identify as LGBT meet their needs is crafted in a way that respects the consciences of reasonable people acting on good-faith beliefs about marriage and gender identity. Not every disagreement is discrimination. And our law shouldn’t suppose otherwise.