ENDA’s Game


Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering Republican. Recovering Catholic. Recovering divorcé. Editor-in-Chief Emeritus of Ordinary Times. Relapsed Lawyer, admitted to practice law (under his real name) in California and Oregon. On Twitter, to his frequent regret, at @burtlikko. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

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152 Responses

  1. Avatar Rod says:

    I’m happy to say that my company officially doesn’t give a damn who you love and I’ve run across at least three trans fem drivers that work for us.

    But I’m wondering… the corporate headquarters is in a state without protection but we have terminals all over the country including at least four in California and drivers with home addresses in probably all the lower 48. So which state’s laws would apply in an employment dispute? Home state of the driver? State his “home” terminal is located? Or corporate headquarters?Report

  2. Avatar Kazzy says:

    Schools are often places where discrimination against LGBTQ folks reigns supreme. “THE CHILDREN!” And all that. The end result is that schools lose good teachers. Let’s hope this helps stop that.Report

  3. Avatar Mad Rocket Scientist says:

    ENDA’s Game

    I see what you did there…Report

  4. Avatar Tod Kelly says:

    This was a fantastic post, Burt.Report

  5. Avatar Mad Rocket Scientist says:


    Seeing as how you are actually knowledgeable about this area of law, what would you say to the author of this post.

    Is he correct that it can happen that way, or is he misreading the law?Report

    • Tod may also have some insights here. Doesn’t sound right to me. Not that the woman couldn’t file a complaint, but that there are actual liabilities if the company was never informed about what was going on. I’d think that any complaints that occurred would be of the “There has been a complaint, and now you need to resolve it” variety and not the “There has been a complaint, and now you’re going to have to pay up” variety.

      But I’d expect others to have a better idea than myself of this.Report

      • Avatar Kazzy in reply to Will Truman says:

        Even assuming that guy is 100% correct, I disagree with him. Interestingly enough, I’ve been thinking about this a lot with regards to the Jonathan Martin situation.

        Many people there have said that Jonathan never indicated a problem, never spoke up, never sought out remedies and, thus, is in the wrong to be pursuing support elsewhere. To me, this is the wrong way to look at it.

        I’m not an expert on the psychology of victims of abuse and harassment, but what little I do know tells me that it is often very difficult to seek support from even the most trusted of sources. To require these people to seek support from the very source of their mistreatment (even if a different arm entirely of that source) and to deny them other means of redress should they not pursue such action is going to greatly curtail people’s ability to address the issue.Report

      • Avatar Mad Rocket Scientist in reply to Will Truman says:

        @will-truman That’s my thought, that a suit could not be filed in good faith unless an effort to address the problem outside the courts failed.

        That does not mean that is how it works in practice, which is what the author is claiming.

        @kazzy having been a victim of bullying in my past, I am sympathetic to your point, but in general most adults should make at least an attempt to address the problem internally before seeking outside help, except in the most egregious of circumstances.Report

      • Avatar Trumwill in reply to Will Truman says:

        My thought is that if an aggrieved party feels they have to go outside the chain of command (up to and including the company president), well… that’s sometimes the case. Involving an outside party (and allowing the involvement of an outside party) to remedy the situation may be required.

        Where I would share Coyote’s concern is if the remedy involved damages. Which is to say, going to the EEOC to say “This has to stop” is one thing, but going and saying “I demand sanctions for what has already happened (that I didn’t tell anyone about)” is another. Sanctions (“liabilities”) is what it looks like Coyote is talking about here. Which is why I am a bit skeptical that he is correct, but sympathetic if he is correct. That’s what I was getting at with my last sentence of the first paragraph.Report

    • He’s cherry-picking. As I shall explain, workplace culture is a huge issue which he completely glosses over in his rush to explain how he has absolutely no problem with gay people, and his vision of plaintiff-EEOC-defendant interaction is abbreviated to make his political point. For instance, from paragraph 3 of the linked article:

      Suddenly, as owner of the company, one finds a lawsuit or EEOC complain in his lap, generally with absolutely no warning.

      Technically not false as phrased, but deceptive (charitably, not intentionally so on the part of the author). The lawsuit cannot be filed until the EEOC issues a right-to-sue letter. In theory, the EEOC’s “Hey, we just got a complaint against you, please answer it” correspondence can come out of the blue. So can the EEOC’s “Hey, we just got a complaint against you, but the plaintiff wants to go right to court so we issued a right-to-sue letter” notice. Also, the chances that an employee with whom everything has been going along swimmingly, who has good morale and who has no performance problems, will out of the blue suddenly grow a new brain and decide that she is the victim of discrimination, are quite low. This will have been a problem employee. If no problem was apparent to management, that is a failure on the part of at least her supervisor for not spotting a problem.

      In the few cases we have seen in our company, the employee never told anyone in the company about the alleged harassment, never gave me or management a chance to fix it, despite very clear policies in our employee’s manuals that we don’t tolerate such behavior and outlining methods for getting help.

      This is congruent with my experience, and with a substantial body of case law, but again it glosses over a fairly substantial issue. Why would the employee not complain internally if there are internal complaint procedures? Because she fears retaliation. The employee also probably (and probably correctly) perceives that the internal complaint process has been created for the purpose of minimizing liability in subsequent employment litigation, rather than for the purpose of actually eliminating discriminatory conduct. It is up to upper management to make it crystal clear that both discrimination and retaliation will not be tolerated, even in cases where the alleged harasser is exonerated by the internal investigation. Mostly, although not completely, the military has figured out how to do this. Some corporations have figured out how to do this too. So it can be done.

      There is nothing in EEO law that requires an employee to try to get the problem fixed via internal processes.

      This is incorrect. Ironic; in my very last class I discussed Burlington Industries v. Ellerth (1998) 524 U.S. 742, in which the Supreme Court held:

      …an employer subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employer. When no tangible employment action is taken, a defending employer may assert a two prong affirmative defense, that (1) it exercised reasonable care to prevent and correct promptly any sexual harassing behavior and (2) that the employer unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise. No affirmative defense is permitted where harassment culminates in a tangible harm.

      So when the employee up and quits without pointing to a specific bad thing the employer does to her, saying that she can’t take the harassment any more, and there is an internal complaint process, the employee who fails to avail herself of the internal complaint process is subject to an affirmative defense against an otherwise good case. Does this sink the battleship? No, because in some cases the employee can prove that her failure to use the internal complaint process was reasonable (e.g., when the person to whom the complaint should be directed is the harasser, or when the harasser is the ultimate authority in the company like the owner, or when a history of retaliation against past complainants can be proven, in all of which cases there are deeper problems even than the lawsuit).

      Fourth paragraph:

      our company can be financially liable for allowing a discriminatory situation to exist that we could not have known about, because it happened in a one-on-one conversations and the alleged victim never reported it.

      Again, I’m not hugely sympathetic because you hired this guy in the first place and apparently have failed to train and supervise him such that he felt free to say things in this one-on-one conversation so bad that you’re actually getting sued over it.

      Fifth paragraph:

      Lawyers do not want the problem to be fixed. Lawyers want the problem to be as bad as possible and completely hidden from management so there is no chance it can be fixed before they can file a lucrative lawsuit.

      Not true at all. If I am a plaintiff’s lawyer in an employment case, I want the problem to have been fixable. I want to demonstrate that management had notice of the problem and an opportunity to fix it. That means that the low-to-middling value cases are going to actually be fixed, which is okay with me because my margin on those kinds of cases is not all that much to write home about. But those cases where management knew about and failed to fix a situation? Those are the lucrative suits, because now we’re in the world of punitive damages. Nor, as a plaintiff’s attorney, have I ever turned down an offer of non-monetary relief that would actually improve the culture in a company. Not that those offers get made all that often because defendants’ usual attitudes about plaintiffs and their lawyers is “Fish you, you’re a filthy liar and a whore and your attorney is both of those things too, and we intend to utterly crush you in court and we’ll never ever pay you a fishing goddam penny. Oh, I almost forgot, fish you and fish your lawyer too.” Sometimes that message is delivered with a smile. But never is there the remotest indication that there might have been a problem and that the company is interested in changing anything one iota to actually address it because fish you, plaintiff’s lawyer, that’s why. (Of course, it is litigation.)

      Sixth paragraph:

      So now what do I do when I have one of these religious folks in conflict with an employee who is gay? If I don’t separate them, I am going to get sued by the gay person for a hostile work environment. If I move the gay person, I will get sued for gay discrimination. If I move or fire the religious person, I will get sued for religious discrimination.

      Since when was your place of business also a church? Or for that matter, since when was it the gay-people-snarking-about-religious-hypocrites club? Your job is to cultivate a respectful environment, and make clear to both groups that deviations from mutual respect are not going to be tolerated.

      As you might imagine, my class in employment law is as much about workplace culture as it is about the nuts and bolts of the statutes. Employers who cultivate good workplace cultures don’t have these kinds of conflicts. Employers who have engaged supervisors reporting to engaged managers spot problems arising early, and nip them in the bud. I realize the author of the linked post wants to see himself as such an employer and I don’t doubt that he tries to be.

      If he’s getting EEO complaints out of the blue, though, that means that he’s falling short of that goal somehow, and he needs to take a real good, hard, clear-eyed look as to why. Bear in mind that this employer is explicitly opposing the passage of a law that forbids discrimination against LGBTQ folks, folks who he falls all over himself in the passage to prove he has absolutely nothing against; my goodness, he’s even taken their side in the past. The hard part of that examination begins with a maxim that is credited to a lot of different cultures: “The fish rots from the head.”

      None of us are completely immune from the seductive influence of that little bigoted demon who lives inside our heads and fears anyone and anything different from ourselves. Accepting that fact is a big part of keeping that demon under control. Realizing that the demon often puts on a mask of superficial equality is another step down that path. It’s not evident from this essay that the author has gone through the introspection necessary to accept that, despite what appear to be good intentions. Perhaps some other writings reflect that, but I’ve only read the linked article.

      If your employees are gruntled, they’re not going to sue you. Once they become disgruntled, it’s very, very hard to re-gruntle them. Keep them gruntled. This involves spending money. Pay them enough, yes, but there’s more to it than that. Don’t RIF them because quarterly profits are down. Invest in training, both substantive for the job and procedural for the company’s operations. Give HR enough autonomy to actually police for problems, including in upper management, and make clear that this is their mandate because this is how they can best prevent lawsuits and protect the company. Enforce discipline and performance standards rigorously, evenhandedly, and often. Everyone has to pay attention to morale on the tier of workers below them, to encourage issues to be communicated to them in a fearless fashion, and to communicate issues to the tier above them without fear that doing so will make them look bad. When there is a problem, act quickly, respectfully, and firmly to stop the bleeding — and of those three adverbs, “quickly” is the most important.

      Congratulations, you just got the ultra-condensed version of my final lecture in that employment law class.Report

      • Avatar Mike Schilling in reply to Burt Likko says:

        Don’t RIF them because quarterly profits are down. Invest in training, both substantive for the job and procedural for the company’s operations.

        When did Burt turn into a Communist?Report

      • Avatar Kazzy in reply to Burt Likko says:


        Thank you for sharing your perspective as the victim of bullying. I think Burt’s breakdown here mirrors how I think it ought to function: It is preferable for the victim to start with internal mechanisms to address the situation (something I should have noted in my first comment) but not required, as the situation must be such that doing so imposes too high a burden on them. In that event, they may face a greater burden when seeking external mechanisms.Report

      • @burt-likko

        There’s so much to like about your comment, but I’ll add a doubleplus 1 to this:

        None of us are completely immune from the seductive influence of that little bigoted demon who lives inside our heads and fears anyone and anything different from ourselves. Accepting that fact is a big part of keeping that demon under control. Realizing that the demon often puts on a mask of superficial equality is another step down that path.


        I think Burt was referring to R.I.F.Report

      • Avatar Brandon Berg in reply to Burt Likko says:

        If he got sued, he must have been asking for it.Report

      • Avatar Mike Schilling in reply to Burt Likko says:


        Burt is saying that workers are something other than replaceable, disposable parts who should be grateful for the opportunity to work under sweatshop conditions, and who should cost their employer the absolute minimum possible, anything above that being rent-seeking and deadweight loss. That’s communism, or at thr very least blasphemy, heresy, and lese majeste against Smith the Father, Hayek the Son, and the Wholly Galt.Report

      • Avatar Mad Rocket Scientist in reply to Burt Likko says:

        Most excellent, thank you Burt!Report

  6. Avatar Mike Schilling says:

    “We’re firing Sally for not being Jewish.”

    “You can’t do that!”

    “You can when she keeps taking Jewish holidays off.”Report

    • Avatar Will H. in reply to Mike Schilling says:

      I was thinking that Simon Bar Sinister, from the Underdog cartoons, has a very Jewish-sounding surname; of Middle-Eastern descent, no doubt.
      Though I remember Underdog airing on Saturdays, this still provides Mr. bar-Sinister an opportunity to engage in production work through the week; leaving his Saturdays free for religious observances (whether Jew or adventist). Alternatively, I prefer to think that Mr. bar-Sinister was given an opportunity to pray toward Mecca at the appropriate times through the week.

      It’s sad to think that Simon bar-Sinister could be released from Underdog without appropriate redress.Report

  7. Avatar Tim Kowal says:

    I was following your argument through LG, but you lost me, since I suppose you did “the American people as a whole” as well, with BTQ.Report

    • Avatar Burt Likko in reply to Tim Kowal says:

      Perhaps that’s right. There’s a fair amount of freaking out going on here in California about unisex bathrooms in public schools as a result of a new law mandating accommodations to trans students based on, I think, presumptions that people will lie about being transsexual so they can be in the same bathroom as people of the opposite sex and listen to them pee. Doesn’t make a lot of sex to me, which is why I label it “freaking out.” Bisexual people often report confusion when they date or marry opposite-sex partners; some people seem to think “bi” means “gay.” And “queer” can mean nearly anything with proximity to that constellation of that segment of human existence called “sex.”

      So yeah, the spectrum of accepted traits only expands very slowly and maybe LG has been pushing into that range for longer than BTQ. All the same, if Employee is bisexual, Employer still has no more legitimate interest in that than if Employee were gay or straight. Trans maybe raises some issues for restroom or dress code matters, but a good-faith interactive process seems to be the way to tackle that. And a good-faith interactive process is a massive, but routine, part of what happens in a good workplace culture.Report

      • Avatar Mike Schilling in reply to Burt Likko says:

        Doesn’t make a lot of sex to me

        “Paging Dr. Freud. Dr. Freud, please pick up the suggestively shaped telephone.”Report

      • Avatar Burt Likko in reply to Burt Likko says:

        I’d blame it on my tablet, but I wasn’t using it.Report

      • Avatar Kim in reply to Burt Likko says:

        yeah, people are just being… rather ignorant.
        Public (communal) restrooms get used for sex a whole
        lot more than they get used for masturbation,
        I’d be willing to bet.Report

      • Avatar Tim Kowal in reply to Burt Likko says:

        And if I may go a step further and ask: What is the history/pattern of discrimination against bisexuals? Because it seems to me there isn’t much of one, or if there is, it’s nonobvious to most Americans (as I think you at least partially acknowledge). And that suggests that most American employers are not immediately aware of how to be more sensitive to bisexuals, which in turn suggests ENDA is a bit of a head-scratcher and source of worry at least in that respect.

        Peeling the onion back yet another layer, and forgive my ignorance, but making bisexuality a right suggests a right to multiple sex partners, a right that is not only nonobvious to most Americans but not practically available to a good many of them, e.g., the married ones. Unless, that is, it is suggested that the right only exists so long as one regularly alternates between sexes and/or genders in choice of sexual mates. That seems not a very well grounded rule, however. Thus, applying the Tod Kelly rule that cultures often unintentionally and unknowingly signal tacit approval to those who wish to engage in extreme anti-social behavior, I wonder whether ENDA signals approval of infidelity and disruption of established sexual norms — including norms that the LG community has championed in its advocacy of same-sex marriage.Report

      • Avatar Kim in reply to Burt Likko says:

        the right to serial monogamy is well understood in this country.
        Even to the point of one night stands (see the “pickup culture”
        for an example of how societally rewarding it can be).Report

      • Avatar Burt Likko in reply to Burt Likko says:

        My own lawyerly experience has been that a segment of people think that “bi” equals “gay.” Omar works as a checker/stocker at FoodCo Grocery Store (names changed, of course) and for whatever reason reveals to his co-worker that he is bisexual. Rumors fly and soon enough there is all sorts of harassment going on: lewd gestures with various objects found in the store, lurid questions about sex acts with other men, and accusations of being promiscuous and “greedy” for wanting men and women, among other things. Management says “sorry, dude, you’ve got to deal with this on your own.” Omar meets and falls in love with Sally, announces engagement. Harassment continues: “Does Sally know that you’ve [vulgar description of sex act] with other guys?” and “what, did you switch back from guys to girls?” and “is Sally a lesbian so this is you two covering for each other?” Management continues to take a hands-off attitude, assuring Omar that the situation will work itself out over time although it never really does.

        FWIW, my opinion is that while this is a FEHA violation, the jury award available is probably not super-high. Management’s sin is not intervening; but management is not participating in the peer-on-peer harassment. My strong suspicion is that Omar’s story is illustrative of at least one species of prejudice bisexuals face. It’s pretty similar to (but not exactly the same as) the kinds of prejudice gay people face, so I see a lot of confluence there.Report

      • Avatar Burt Likko in reply to Burt Likko says:

        I should also add that there is another prejudice that “bisexuality equals promiscuity.” Maybe this is a byproduct of pornography. But in real life, premarital serial monogamy seems to be a pervasive norm for people of all orientations, and from what I’ve observed socially bisexuals are no different. Nevertheless, it seems bisexuals get tarred as “sluts” even more frequently than do either gays or straights as they are falsely imagined to have indiscriminate and voracious sexual appetites.Report

      • Avatar Tim Kowal in reply to Burt Likko says:

        I’m trying to identify the principle here. Should bisexuals be protected because they are subjected to the conduct Omar experienced? Or is there something else that makes them a suspect class? I ask because I could probably think of hypothetical alternative traits that might subject Omar to similar unwelcome conduct — e.g., he used to be a member of the John Birch Society, or he’s an Eagle Scout, or he has a prominent and suggestively shaped birthmark, etc. Personally, I’d like to see management shut down such unwelcome conduct regardless of what trait it’s directed at. But there’s a high hurdle before the law — a federal law at that — should step in and mandate such intervention under pain of lawsuit.Report

        • Avatar Burt Likko in reply to Tim Kowal says:

          I’m pointing out (or at least attempting to point out) the pervasive, unwanted, unreasonable patterns of adverse treatment by way of Omar’s example. Perhaps you’re searching for soMething a bit more theoretical. Might not exist. We as legislators might make Eagle Scout or former advocacy group membership protected classes too, although we’ve not yet done so. At the federal level, bisexuality is not a legislatively protected class and here in California it is, both by legislative fiat. Reasoning from The Marriage Cases makes sexual orientation a judicially suspect trait in California, and similar reasoning might be used by Federal courts in the future but to my knowledge has not yet. Finally, as @boegiboe points out there is administrative interpretation as well, at least while certain administrators get to do the interpreting.Report

      • Avatar Tim Kowal in reply to Burt Likko says:

        Also, would it be actionable to share with a bisexual co-worker this article written by a self-described conservative “bisexual Latino intellectual, raised by a lesbian” who decries “the liberal attitude that we shouldn’t be judgmental about sex”? http://www.thepublicdiscourse.com/2012/08/6065/

        At the Orange County Human Relations Commission meeting last night, I shared my concerns about AB1266, the California law that requires public schools to make their facilities — bathrooms, showers, locker rooms, etc. — available to all children regardless of biology and only based on their gender-identification, over which children are to be completely autonomous. My concern is that the only model in the nation currently on offer is the LAUSD. We had the diversity official in charge of administering that program come speak to us last month. I couldn’t attend because I was at trial, but our staff was helpful enough to ask a question for me: What is the district’s policy concerning involving parents in their children’s identification with a gender opposite their biological sex? This question was raised in my mind by reading the LAUSD’s published guidelines, which suggested parents generally not to be told. The representative confirmed the guidelines: the schools’ “primary client” is the child, not the parent. This was shocking to me given the paucity of the science on transgenderism and whether it may be in some or even many cases a disorder requiring medical or other professional attention. http://www.firstthings.com/article/2009/02/surgical-sex–35. To purposefully exclude parents from their children’s psychological well-being, particularly without making professional psychological or psychiatric help available, seems, at the very least, negligent in the extreme.

        So yes, I am concerned about unthinkingly hitching the BT car to the LG engine.Report

      • Avatar Burt Likko in reply to Burt Likko says:

        I’d hope that for purposes of this discussion, you’d at least consider that “B” is closer to “LG” than it is to “T.” At least that’s how it looks to me; granted that I’m straight and haven’t had to personally confront anything but my own prejudices, with the additional luxury of being able to do so internally.Report

      • Avatar Tim Kowal in reply to Burt Likko says:

        I’d be willing to consider it, sure. Though I’d like some assurances I would not be dealt a Regnerus-sized beating for doing so. From the Public Discourse article:

        “Among the problems Sherkat identified is the paper’s definition of “lesbian mothers” and “gay fathers”—an aspect that has been the focus of much of the public criticism. A woman could be identified as a “lesbian mother” in the study if she had had a relationship with another woman at any point after having a child, regardless of the brevity of that relationship and whether or not the two women raised the child as a couple.

        Sherkat said that fact alone in the paper should have “disqualified it immediately” from being considered for publication.

        The problem with Sherkat’s disqualification of Regnerus’s work is a manifold chicken-and-egg conundrum. Though Sherkat uses the term “LGBT” in the same interview with Bartlett, he privileges that L and G and discriminates severely against the B, bisexuals.”Report

      • Avatar Kim in reply to Burt Likko says:

        Strong pressure to keep Transsexuality as a mental disorder exists, because then they can get insurance to pay for treatment (defined as “surgery or hormone therapy”)

        I agree, the child is the client, BUT proper services should be made available to them. Don’t all schools have a psych counselor?

        I, personally, would like a policy where kids who don’t tell their parents important stuff get a free ticket to the psych doc. [If nothing else, to discuss when/how to tell parents, or explain why this is such a bad idea. If your dad is likely to literally beat you, then fine. otherwise, talk until you’re comfortable]Report

      • Avatar J@m3z Aitch in reply to Burt Likko says:

        making bisexuality a right suggests a right to multiple sex partners,

        The idea that you might not have a right to multiple sexual partners, or at least the right to love a guy in your first relationship, then a woman in your second relationship (assume perfect monogamy, but the first spouse dies)… that involves giving authority to society/government that just chills me to the core.

        “Sorry, Mr. Smith, we allow homosexuality, but not bisexuality. We understand that your first sexual encounter was with a man, so we’re afraid that we cannot allow you to now have sex with a woman. No, this is no a violation of your rights in any way.”

        How is it your business? Just as your religious faith is a deeply fundamental part of your being and identity that should be far outside the scope of authority for the rest of us to interfere with, a person’s sexual identity is as well. If you doubt that, imagine society made a weird turn where it started regulating heterosexuality, requiring you to hide your fundamental sexual orientation or to deny it and not be able to choose to love a person of the opposite sex. How deeply violating would that be to you?

        And it is fundamentally illogical to say that bisexuality is about having multiple partners. Being bisexual doesn’t require multiple partners anymore than being homosexual or heterosexual does. Did you ever date anyone other than your wife? A bisexual person before falling in love and settling down could also date someone other than their future spouse, both males and females, without having sex with any of them. Bisexuality is not about having sex with both males and females, but about finding both sexually/romantically attractive–a bisexual person could potentially just choose either/or instead of–like you and me, presumably–just the other.

        If I come off a bit heated here, I hope you’ll be forgiving. I’ve recently had a couple people who are close to me come out as gay or possibly bisexual, and all I can really see here is some hypothetical concern on your part that some person in America might–in an unprecedently shocking act!–have more than one sexual partner in their life, stacked up against the right of these people to look for romantic and sexual fulfillment in their own lives just as you and I have. It does make me angry.Report

      • Avatar Tim Kowal in reply to Burt Likko says:

        “Protected class” can stand in for “right” for our purposes here.Report

      • Avatar J@m3z Aitch in reply to Burt Likko says:

        Doesn’t change the issue for me, Tim. Your religious beliefs, so core to your identity, should be protected, but not somebody else’s fundamental attributes of their identity? I’m afraid I can’t follow any logic there.

        How about we make a deal? You give up your protected status, then I’ll listen to you argue that somebody else’s status shouldn’t be protected.Report

      • Avatar Tim Kowal in reply to Burt Likko says:

        We do have a signed document that helps sort these things out.Report

      • Avatar J@m3z Aitch in reply to Burt Likko says:

        You have a signed document about your religious faith? OK, and that matters…..why?

        And if the bisexual signs a document affirming their bisexuality and gets it notarized, will that suffice for you to agree to giving them the same protected status the state has privileged you with?

        Or do you think there’s an important social interest that’s met by being able to discriminate against those who have multiple sexual partners? (And is there a statute of limitations on how long after the fact we can discriminate against them for doing so? I’m just kind of concerned that my current employer might be able to fire me because I boinked that one girl twenty some years ago, before I met my wife.)Report

      • Avatar veronica dire in reply to Burt Likko says:

        My understanding is the California law requires a medical diagnosis of Gender Identity Disorder (soon to be renamed “Gender Dysphoria” in the new DSM).

        How a teen might acquire such a diagnosis without their parent’s involvement seems a mystery to me. It might be possible, but that seems outside of this law’s scope. Certainly no teen can acquire such a diagnosis on a lark.

        There is zero actual danger that cis children will “play trans” to do naughty things in the girl’s room. That is grotesque fear-mongering by bigots.Report

      • Avatar Tim Kowal in reply to Burt Likko says:

        Working from the premises of the OP, there is no abiding animus against LG people or BT people. As Mr. Likko says, most Americans already believe they’re protected, and they seem fine with that. And isn’t that the happiest possible state of affairs? Is there anyone, anywhere, who thinks it was a good thing there was such vile racism in our country because, if there hadn’t been, we wouldn’t have had occasion to pass all these anti-discrimination laws? Of course not. If minds and conduct are upright, passing laws requiring uprightness would be improvident on top of unnecessary. Which is precisely why no one proposes bills safeguarding one’s right to get up in the morning, to walk down the street, to wear a hat. And which is why I asked: What is the history/pattern of discrimination against bisexuals? Where is the conduct that must be set aright?

        And it’s also why I asked if we are headed to a place where one cannot freely express opinions about sex without offending a law protecting one’s “fundamental attributes of their identity.” Because to prohibit making assessments about things we first have to determine, and enact as the law of the land, that there are no worthy assessments to be made about those things. Have Americans determined this with BT? Have psychiatrists?Report

      • Avatar Cascadian in reply to Burt Likko says:

        @tim-kowal “We do have a signed document that helps sort these things out.” Are you talking about the constitution? FYIGM?Report

      • Avatar morat20 in reply to Burt Likko says:

        And isn’t that the happiest possible state of affairs?
        Not if your boss isn’t one of those people.

        Can’t really say that “Don’t worry, most people won’t realize they can indulge their inner homophobe and fire you!” is really the best state of affairs.

        We’re not about to abolish the laws against murder because “most people wouldn’t actually kill anyone even if it was legal!”Report

      • Avatar Tim Kowal in reply to Burt Likko says:

        I am talking about the Constitution & BOR. I reject your “FYIGM” quip. Among other things, the Constitution sets out some guidelines for how to think about political issues. When it comes to religion, speech, and certain other rights, we put a heavy burden on laws encroaching them. Also, it confirms that religious and conscience issues, among others, are indeed rights. That is not to say there are not unenumerated rights, but we do need to do more than just assert them as such.

        I think those concepts are relevant here. I don’t know what conduct exactly is at stake here or how it’s being impinged, much less why one class of people (employers) should be deemed to have no worthwhile assessments about that conduct that the law is bound to respect, and indeed should be punished for purporting to make such assessments.Report

      • Avatar Tim Kowal in reply to Burt Likko says:

        No, morat, I took from the post that most Americans really are mellow and don’t want to can people based on their sexual attractions. Are there exceptions? Sure. But there are also some who would fire people after learning they engaged in other sorts of old-fashioned sexual conduct (i.e., other than BT-related conduct) that the employer was uncomfortable with. Should we protect sexual conduct more broadly? Why or why not? Because I don’t see the logic here. I see LGs having won some big political and legal victories, and I see BTs having hitched their cause to them. But I don’t see the logical relationship between them, and I don’t see that we’ve settled that there aren’t any worthy assessments left to be made within the wide world of sex and gender such that from here on out any attempts to make such assessments should be outlawed.Report

      • @tim-kowal

        “Protected class” can stand in for “right” for our purposes here.

        As always, I stand to be corrected, but I had thought the “protected class” here is sexual orientation and gender identification, not homosexuality, bisexuality, transgenderism, or heterosexuality alone. When the bisexuals take over the country–which seems well nigh, given the epidemic of unisex bathrooms and gender-bending locker rooms that, apparently, are relentlessly afflicting the nation–then even straights (or “breeders” as some name them) can call on the law for protection.Report

      • Avatar Tim Kowal in reply to Burt Likko says:

        I also stand to be corrected, but sexual orientation seems to not quite fit BTs the way it fits LGs and heteros, as Bs’ orientation changes, or perhaps we might say there is no clear orientation, and Ts’ issue is not primarily with sex orientation at all but with a gender identity at odds with their biology.Report

      • Avatar Kazzy in reply to Burt Likko says:

        “Peeling the onion back yet another layer, and forgive my ignorance, but making bisexuality a right suggests a right to multiple sex partners…”

        This is a fundamental misunderstanding of bisexuality.

        Think of it this way. You may like blondes AND brunettes. You may have, at one point in your life, dated a blonde woman and at another point in your life, dated a brunette woman. The fact that you’ve done both and would be interested in doing either or both again doesn’t mean you’re interested in multiple sexual partners. It simply means that you are open to a wider range of potential sexual/romantic partners than someone who only prefers one hair color.Report

      • Avatar Kazzy in reply to Burt Likko says:


        Reading more of your comments here, it seems you are deeply misunderstanding bisexuality. Bisexuality is not switching orientations; it IS an orientation. Sexual orientation is not a binary. It is a spectrum.

        You might be right that T is not in the same cart as LGB, but L and G and B are certainly all in the same cart together.Report

      • @tim-kowal

        I also stand to be corrected, but sexual orientation seems to not quite fit BTs the way it fits LGs and heteros, as Bs’ orientation changes, or perhaps we might say there is no clear orientation, and Ts’ issue is not primarily with sex orientation at all but with a gender identity at odds with their biology.

        I actually mentioned gender Identification in my comment. And why isn’t “bi” an orientation?

        A related question: is your true rejection the inclusion of Bi-Transgendered individuals? If so, then do you agree with protections for LG’s? If so, do you agree that discrimination against Bi’s and Transgendered individuals ought not to be actionable? If not, where do you draw the line? Are you asserting that antidiscrimination laws against LG’s are a fait accompli, but that we need to hold the line against yet another group?Report

      • I also stand to be corrected,….

        You’re the lawyer here and you know whether it’s sexual orientation and gender identity, or just LGBT (and not hetero) and Female/Bi (and not male) that’s involved in that “protected category.”Report

      • Avatar Tim Kowal in reply to Burt Likko says:

        Thinking about this in parts: A bisexual man might have sex with females. In that capacity at least, he’s not part of a protected class. He might have sex with males. In that capacity, he would be protected under whatever rules are in place protecting homosexuals. Thus, no need for a new rule protecting bisexuals. The only meaningful difference bisexuals present for our purposes here is that they would require the ability to engage in sexual conduct with multiple partners. Did I go wrong somewhere?

        Again, it would be helpful if I had some more examples of what kind of pervasive hostility and animus bisexuals are facing that calls for this law. The Omar example Burt provided is one, but again, I’m not sure it demonstrates the need for special rules for bisexuals other than what I’ve just outlined, and I’m further not sure that it offers any principled stopping point for enacting an even broader law prohibiting making any assessments concerning any sexual conduct whatsoever.Report

      • Avatar greginak in reply to Burt Likko says:

        Tim, i don’t understand what part “assessments” of peoples sexuality has to do with this. You can think anything you want, no one is challenging that. But what does that have to do with ENDA.Report

      • Avatar Alan Scott in reply to Burt Likko says:

        @tim-kowal , what’s amazing is that you can have such a fully developed opinion on ENDA and its necessity while knowing fish-all about sexual orientation and gender identity.

        Fortunately, you don’t have to be informed. You don’t need to have any kind of experience with LGBT people or LGBT discrimination to decide what the “happiest state of affairs” is for me and mine. Because you have a signed copy of the Bill of Rights to guide your conscience.Report

      • Avatar Tim Kowal in reply to Burt Likko says:

        @kazzy , I’m fully ready to be wrong about B or T, or L or G for that matter. But I pointed out above that sociology professor Darren Sherkat, one of those who attacked Mark Regnerus’s study, did so on the basis that Bs cannot be lumped in with LGs. Despite that Sherkat employs the term “LGBT.” These concepts seem pretty fluid, and advocates tend to use them in whatever way advantages them. On the other hand, it could be that even experts don’t have a clear grasp on the significance of the spectrum of human sexuality yet. Which is part of my point.Report

      • Avatar Kazzy in reply to Burt Likko says:


        The reason bisexuality ought to be considered part of the broader protection for gender orientation is this:

        In your scenario, you note a man who at one time had sex with woman (which you declare makes him a member of an unprotected class) and at another time had sex with a man (which you declare makes him a member of an already protected class). But imagine he is fired. Because of the sex with men. And he files suit. His employer could say, “He’s not gay! He has sex with women!” It then becomes an issue for the court to decide as to whether or not he qualifies as “gay” and thus deserving of protection.

        So this is not about extending protection to bisexuals… but extending protection to everyone. No one should be able to discriminate against someone else who is engaged in a consensual, legal sexual relationship. Period.

        Think of racial protections. Is it legal for a black man to fire a white man because he’s white? No. It is not black people who are a protected class; rather, we recognize race as deserving of protection, regardless of the race.Report

      • Avatar Kazzy in reply to Burt Likko says:

        Regarding the B in LGBTQ, why are you focusing on the work of one man? Why not listen to bisexuals themselves? http://www.theguardian.com/commentisfree/2010/feb/15/bisexuality-lgbt-history-monthReport

      • @tim-kowal

        My comments had an implicit question that, unfortunately, I probably did not make clear. So I’ll ask it outright, lest there be confusion:

        Do ENDA and other anti-discrimination create B’s or LG’s or T’s as specifically identified “protected classes,” or do these laws/bills create “protected classes” based on orientation/gender identity? It seems to me these proposals don’t make gays or lesbians or bi’s or transgendered protected classes. Rather, they make orientation and gender identity into protected classes. Therefore, a straight person and a male person are protected from discrimination under these laws just as much as a LGBT or female person. Am I wrong? If so, where?Report

      • Avatar J@m3z Aitch in reply to Burt Likko says:


        Working from the premises of the OP, there is no abiding animus against LG people or BT people.
        That != no animus.

        most Americans already believe they’re protected, and they seem fine with that. And isn’t that the happiest possible state of affairs?
        As happy as actually being protected? Don’t conflate the group with the individual here. It’s great if there’s not regular animus the group, but it’s still terrible for the individual who suffers animus. Would you say that since Christians don’t generally face employment discrimination, it’s ok of they’re not truly protected and the ocasional Christian does?

        It seems to me that you are consistently choosing to avoid putting yourself in the orher person’s shoes.

        What is the history/pattern of discrimination against bisexuals? Where is the conduct that must be set aright?>/em>
        It could be pretty easy to hide. You seem suspiciously eager to assume there is none, just because you haven’t heard about it.

        And it’s also why I asked if we are headed to a place where one cannot freely express opinions about sex without offending a law protecting one’s “fundamental attributes of their identity.”
        Nobody’s talking about violating free speech–this is an egregious strawman.Report

      • Avatar J@m3z Aitch in reply to Burt Likko says:

        why are you focusing on the work of one man?

        Because he’s cherry-picking. Since I first came to know him back in Positive Liberty days he’s been arguing against legal equality for non-straights. If we’ve got him to the point of accepting LG, I guess we’ve made progress. He’s a microcosm of religious right America in a way. Never able to just stretch himself out to fully accept that personal lives are neither other people’s nor the state’s business, unwilling to listen carefully and sincerely to those who are actually more at risk in society, but slowly acceding to an unfolding reality that he’s come to realize can’t be stopped, while still trying to fight a rearguard action to draw the line here…ok, here….

        It’d almost be an admirable action in a noble lost cause if not for the callous disregard for real human lives.Report

      • Avatar Tim Kowal in reply to Burt Likko says:

        @kazzy , “So this is not about extending protection to bisexuals… but extending protection to everyone. No one should be able to discriminate against someone else who is engaged in a consensual, legal sexual relationship. Period.”

        I appreciate your candor and clarity. We disagree, but clarity is preferred to agreement.

        But for the sake of clarity, let me ask further: Do you mean for the rule to be limited to “relationships”? I think you mean any consensual legal conduct more generally, correct? I ask because I know people like to suggest this is all about “love,” but I think if we are being clear we are speaking much more generally. But I don’t want to put words in your mouth.

        And one more point of clarification: I take it this means you do not think ENDA goes far enough, am I right?Report

      • Avatar Tim Kowal in reply to Burt Likko says:

        @jm3z-aitch I do not understand how you think you could make such a comment and expect me to continue to engage with you. But I suppose I have only myself to blame, because this is not at all out of character for you. So for my own accountability, let me here announce that I shall never engage another comment of yours. And do not email me again.Report

      • Avatar J@m3z Aitch in reply to Burt Likko says:


        1. I have not emailed you in a very long time and had no intention of doing so.

        2. You have consistently taken a position that would limit the reach of the Constitution to provide equal protection to LGBTQs. You legalistically crab the Constitution to make it a very limited majoritarian protecting document, by demanding that marginal groups prove they deserve protection rather than demanding that majoritarian groups prove that their discrimination is legitimately protected.

        I’m not about to lose sleep for calling you out on that. I’ve noticed over the years your habit of taking offense and running from argument when people dare to call you out. It appears to me you want to hold these views without having them challenged or being asked to challenge yourself on them. Whether you ever respond to me is unimportant. What matters is whether you consider why you are so reluctant to extend to others the full thrust of the freedoms you enjoy.Report

      • Avatar veronica dire in reply to Burt Likko says:

        BTW, bisexual people do face a particular kind of stigma, not so much from straights, but instead from gays.

        Now, in my experience this plays out more in social spaces and less in employment situations: I don’t know of a case where a gay boss has unfairly fired a bi employee. However, if the latter happened, I would hope the very laws that protect gays from bigoted straights would protect bi people from bigoted gays.

        The relationship between trans folk and gays/lesbians/bisexual people is complex; it would require a history lesson. That said, there is no clean separation between sexuality and gender — after all, we are not talking about thin people who love fat people or redheads who like to sleep with hip hop fans. Instead, we are talking about women who like women or men who like men.

        It’s all gender all the way down.Report

      • Avatar J@m3z Aitch in reply to Burt Likko says:

        This may be unwise, but I have this soapbox and an axe grinder lying around begging to be used, so….

        I personally would allow private discrimination, as I don’t think our private associations, among which I include business associations, are the state’s business. But I would be all inclusive in this, allowing private discrimination on any basis, LGBTQ, race, ethnicity, gender, religion, etc. I know I’m not going to get a lick of liberal support there, and that’s all good–I’m not actually trying to persuade anyone to that position. (Nor do I favor such discrimination–there are many things I would allow people to do of which I do not approve.)

        But that’s not the law we have, and it’s not the law we’re going to have (nor is it anywhere near the top of my personal libertarian priorities). What we have is law where some people are protected from private discrimination and others are not. And that, to me, is the worst outcome. If private discrimination is beyond the legal pale, then it should be all private discrimination (unless it can be specifically justified on a particular case). To say my characteristics shoukd be legally protected from private discrimination but yours should not is a defense of special legal privilege. It creates different classes of citizenship. It also violates that basic ethical principle of doing unto others as you would have others do unto you.

        The constitutional defense, that some of us have this agreed upon document that protects us, is no satisfactory defense. It is a failure to look at the underlying principle and ask what the real purpose is. It assumes that special legal privileges for some is acceptable simply because they had the political power to carve out that special privilege some time on the past. And the overly legalistic interpretation of the Constitution–the “are they as a group really experiencing invidious discrimination” analysis–works to make others justify why they should have equal legal protection, rather than, as we should, putting the burden of proof on the legally privileged to justify that privilege. It says that leaving some people as second-class citizens does not need to be justified, but what needs to be justified is the elimination of second class citizenship. The argument made is that the Constitution’s ideals and protections should apply fully only to some of us, but not to all of us, that the “equal” in equal protection does not really mean equal. It is the Orwellian “all are equal, but some are more equal than others.”

        Yes, I’m a crazy libertarian who would allow all kinds of private discrimination, but if we’re going to collectively say no to that, then the only just approach is to say no private discrimination (except when it can be justified ny appeal to a rather high standard), not “no private discrimination against me, but it’s allowable against thee.”

        If I was overly harsh toward Tim, it’s because he has repeatedly argued against equality for others, argued for retaining his privileged legal status and their second-class status. Although he has perhaps not known this, he has been arguing for second-class status for people who are my friends and my family. How much quarter should I give him? Why should I not damn him to the last of my breath?Report

      • Avatar Art Deco in reply to Burt Likko says:

        You have consistently taken a position that would limit the reach of the Constitution to provide equal protection to LGBTQs. You legalistically crab the Constitution to make it a very limited majoritarian protecting document, by demanding that marginal groups prove they deserve protection rather than demanding that majoritarian groups prove that their discrimination is legitimately protected.

        Since the amendment was enacted in 1868 and since law inherently benefits people with some dispositions and penalizes others, that would seem a reasonable position to take.

        I’m not about to lose sleep for calling you out on that. I’ve noticed over the years your habit of taking offense and running from argument when people dare to call you out.

        He’s just taking his cues from two or three others around here. It’s the local style.Report

      • Avatar Kazzy in reply to Burt Likko says:


        You might be able to convince this liberal about private discrimination IFF we remove any and all government-provided benefits or protections to businesses. If property zoned as commercial space is taxed less than residential space, you forfeit your “private” status. If sidewalks are provided in the commercial section of town but not the residential section of town, you forfeit your “private” status. If tax incentives are given to business in general or your industry, you forfeit your “private” status. And, of course, you’d have to remove any and all barriers to entry so that a competing private entity who was not going to engage in discrimination could open (this may include zoning regulations).

        I recognize that all of this functions differently in different places, so there may indeed exist spaces where a private entity is truly private. But for me, any entanglement with the government for their benefit makes them decidedly unprivate.

        I’d venture to guess you probably agree with me on this.Report

      • Avatar Stillwater in reply to Burt Likko says:


        But for me, any entanglement with the government for their benefit makes them decidedly unprivate.

        This may not be an interesting a line to pursue, but simply being a corporation constitutes an fundamental entanglement with government. At least in the US. Some of these issues were teased out in a series of SC cases in the late 1800-early 1900 hundreds, culminating with Flint as the Court’s Final Answer: government was permitted to tax corporate profits precisely because specific benefits and privileges accrued to firms which only resulted from a government dispensation. To put that claim into the appropriate pre-16th amendment context, the court determined that taxes on the artificial construct known as a corporation were justified, while taxes on individual income were not, because corporate status (and the accompanying protections) wouldn’t exist without government entanglement (granting of charters and all).

        I aint lawyer, so I’m sure I got a bunch of this wrong. But it does seem to present a similar type of worry.Report

      • Avatar Mike Schilling in reply to Burt Likko says:


        I have a different take on this entirely. In general, I should be able, as an employer, to employ only people I’m comfortable with, mo matter how irrational my criteria. And so long as different employers have different criteria, that works fine. To make this a bit more personal, I don’t much mind if a small fraction won’t hire Jews; I still have plenty of opportunity, and I have no desire to work for a bigot.

        The CRA and other non-discrimination laws were passed after 100 years of the 14th Amendment not being enforced to protect a specific group who were being discriminated against systematically. That’s a simple and obvious fact, and anyone who points to the CRA and says “Unjustified attack on liberty!” is stupid, evil, or pathologically selfish and short-sighted. It was an absolutely necessary law, and something that makes me proud of my country. (Same with the VRA, and yes, I’m looking at you, partisan hack “impartial umpire”.) If LGTBQ people face systematic discrimination, I’m all for ENDA to deal with it. “Systematic” is the operative word, though. That’s not the case here in the Bay Area, and I do not know the situation elsewhere.Report

      • Avatar Will Truman in reply to Burt Likko says:

        My view is similar to @mike-schilling on the matter. Once a preference or bigotry becomes systemic, that’s when I see intervention as being warranted. Of course, how high or low we define that threshold can be a contentious matter, but I think that’s a better debate than “It’s just wrong to ever force a company to hire or serve X” versus “Since businesses exist at the pleasure of the state there is no real conflict here.” (Quotes meant to encapsulate general thoughts, not specific quotes.)Report

      • Avatar Burt Likko in reply to Burt Likko says:

        @tim-kowal asks for evidence of historic or systemic discrimination against bisexual people. I pointed out that a substantial segment of people equate being bi with being gay and I am a little confused about why that isn’t good enough to justify protecting bisexuals. If I am bigoted against gay people and think “gay” and “bi” are the same thing, then after Tim outs himself to me as bisexual, you’d expect me to discriminate against him. My example about “Omar” was intended to illustrate this — the kind of harassment Omar fell victim to is very similar to the kind of harassment gays face.

        But there seems to be an assumption about anti-discrimination law that is being missed by all sides of this discussion. Title VII does not prohibit discrimination against African-Americans, women, or Muslims. It prohibits discrimination on the basis of race, sex, or religion. Whites, men, and Christians, although typically not the victims of discrimination, might be in some circumstances and if so can avail themselves of legal remedies. That’s not because there is a historic pattern of pervasive discrimination against them — it’s because that’s the fair way to write, interpret, and apply an anti-discrimination law. If ENDA expands that protection, it will be on the basis of sexual orientation, broadly defined.

        If we agree “gay” is a sexual orientation (seems we do) and that there has been a historic and pervasive pattern of discrimination against gays (which seems to be neither in dispute here nor reasonably disputable) then ENDA is justified according to the metric of “necessary to redress pervasive patterns of invidious discrimination.”Report

      • Avatar veronica dire in reply to Burt Likko says:

        @mike-schilling — Keep in mind the Bay Area already has employment protection laws, so you shouldn’t expect to see open discrimination against gays there. Saying “Under the aegis of protection I do not see the discrimination” does not mean the protection does not work. It suggests the opposite.Report

      • Avatar J@m3z Aitch in reply to Burt Likko says:

        All my liberal friends,

        The reasons you give are why expending any actual energy opposing anti-discrimination laws is pretty close to the last item on my personal libertarian priority list. It’s a lot better use of my time to say “since we have such laws, lets make an even playing field with them, not make them for some and not others.”

        Come to flyover country. I love the Midwest, but unfirtunately bigotry against LGBTQs is still more pervasive here than in California, and particularly the Bay Area. My teenager tells me of the things she hears at school, and while it’s much safer for LGBTQ kids today than in my day, it’s far from warmly accepting. Many parts of the South are undoubtedly yet worse.Report

      • @burt-likko

        does not prohibit discrimination against African-Americans, women, or Muslims. It prohibits discrimination on the basis of race, sex, or religion. Whites, men, and Christians, although typically not the victims of discrimination, might be in some circumstances and if so can avail themselves of legal remedies.

        That’s been my position in this comment thread, although perhaps I wasn’t as clear about it as I should have been.


        Burt’s exposition of what the law is, is pretty much why I’m perplexed at your point that ENDA makes bisexuals into a “protected class.” It makes sexual orientation into a protected class, although your further point seems to be that bisexuality is not a bona fide orientation in the way that heterosexuality or homosexuality is. A further point seems to be that you believe that transgenderism isn’t a gender identity (maybe you’re right, but then we have to ask what gender identity does a transgendered individual have, and my workaday conclusion is that he/she has whatever identity he/she subscribes to).

        I do get that most of us, myself included, are ganging up on you. Yours is a minority position on this blog, and perhaps in the country as a whole (although maybe not…..I’m not staking much on that claim). It must be very difficult to adopt the positions you adopt and then get such a hostile reception. I’m reminded of how I’ve been treated at Lawyers, Guns, and Money, and I don’t particularly wish that experience on anyone.* Still, you seem to use loaded language and loaded concepts. Your comments suggest that ENDA creates a special protected class of “bisexuality” and “transgenderism,” whereas at least on its face it does not. Your comments suggest that protecting bisexuals actually protects a “right” (itself a loaded term) to multiple sexual partners when at worst it prevents or punishes employers who would would fire people based on having multiple partners.

        If you look closely, some of the commenters here agree with you in theory. You suggest that discrimination against bisexuals is not systematic, presumably not in the way that discrimination against blacks was systematic in the era of Jim Crow, and maybe you’re onto something there. But again, my question from above is, is that really your true rejection? Are you willing to sign on to the idea that gays are discriminated against systematically, but defining bisexuality as an orientation, or identifying transgenderism as an identity is a gender identity, is really why you oppose ENDA? I have to take your word on whatever your position is, but so far, you haven’t stated it.

        Finally, I disagree with @newdealer below. I think that the “liberty” to discriminate is a true liberty. As a good liberal (and apparently in partial disagreement with @mike-schilling above) , I would deny others that liberty when it comes to race, religion, national origin, sex, and sexual orientation. But I don’t claim that by doing so, I am not denying to others some freedom. Your side has a point here, and although I’m not willing to endorse the policy implications you (I presume) would support, I recognize that it’s not wholly a wrong position. There is some common ground.

        *That said, there are much worse things than being mal-treated on a blog comment thread. We need to keep things in perspective here.Report

      • @jm3z-aitch

        Even in Chicago, it’s not wholly good, although the state just legalized gay marriage.*

        My sister and her partner visited my wife and me recently, and we visited Andersonville, a reputedly “lesbian-friendly” neighborhood. And even there, when they held hands (which they almost never do in public), some 10 year-old kid started screaming at them how about how “disgusting” it was what they were doing. I assume that kids parents had taught him such an attitude and approved of it.

        True, it’s probably much better than the reception they would have likely gotten in most parts of Denver, where they live, and it’s probably better overall than when they first started dating, some 33 years ago, but there’s a ways to go. Even now, her partner is afraid to be completely out at work because even though local laws protect orientation, her company is conservative, and it’s not clear that she’d be fired on some pretext. And then what? Maybe sue, but then she’ll be google-able as someone who sues their employers and might find it hard to get work.

        *It’s probably a good sign that it hasn’t, to my knowledge, been noted by the bloggers. It’s becoming a “just another expansion of freedom” instead of a “new thing we ought to celebrate”…..I do hope Colorado adopts it soon so my sister can get married before her partners’ parents die….that’s a real concern for them.Report

      • Avatar Mike Schilling in reply to Burt Likko says:

        @veronica-dire @jm3z-aitch et al

        I’ve been working in places where gay people are not only welcome and respected but also occupy positions of authority for about 25 years now, so I was hoping the rest of the country had caught up by now. You’ve shown me that that is, unfortunately, not the case.Report

      • Avatar J@m3z Aitch in reply to Burt Likko says:


        The rest of the country, at least most of it, has improved. Caught up, no. But improved.Report

      • Avatar Brandon Berg in reply to Burt Likko says:

        @kazzy If you’re looking for a flimsy pretext for giving government cart blanche authority to have its way with any business it wants, I suppose that’s as good an excuse as any, but let’s not pretend it’s anything more than that.

        Businesses don’t choose the policy environment in which they operate. Yes, some businesses lobby for certain policy changes, and may even successfully influence policy in small ways, but by and large businesses take the policy they’re given. Businesses don’t actually have the option to opt out the kinds of entanglements you’re talking about.

        And even if they could, you’re not taking into account the effects of the competition treadmill. When the government (funded largely by taxes paid by businesses and business owners, I should add) builds infrastructure or adjusts the tax code in ways that promote business generally*, this doesn’t actually benefit individual business owners. Because of competition, excess profits get arbitraged away as the savings are passed on to consumers through lower prices and/or higher-quality products. If an individual business could opt out of these things, this would put it at a competitive disadvantage.

        More generally, letting the government grant privileges and then using the privileges to extract concessions is a really bad idea, because it basically lets the government do whatever the hell it wants. By all means, we should strip the government of its ability to grant privileges, but unless the regulations are narrowly targeted to counteract the effects of the privilege (e.g., regulating prices charged by government-created monopolies), it’s a really, really bad idea to give the government the authority to extend its power in one area by abusing its power in another.

        To give you an idea of how awful this looks to me, think about applying it to individuals. Should government have the ability to regulate people’s personal lives because they take the child tax credit? Mortgage interest deduction? Standard deduction? Because they’re not in the top income tax bracket? Because they send their kids to public school? Why does what you’re proposing make any more sense?

        *None of this applies to subsidies or regulations narrowly targeted to benefit one particular business, as these give that one business a competitive edge, allowing it to earn excess profits.Report

      • Avatar Brandon Berg in reply to Burt Likko says:

        Oh, and I want to issue preemptive congratulations to Mike Schilling for a subtly (or not) flawed “summary” of my comment that completely misses the point. I’m sure you think it’s very clever.Report

      • Avatar Mike Schilling in reply to Burt Likko says:

        When the government (funded largely by taxes paid by businesses and business owners, I should add) builds infrastructure or adjusts the tax code in ways that promote business generally*, this doesn’t actually benefit individual business owners.

        Yet they spend large amounts of money lobbying for such things. Silly bastards.Report

      • Avatar Mike Schilling in reply to Burt Likko says:

        And rather than wait for someone to disagree with me, I’ll tell you right now that I’m right and you’re a poopy-head.Report

      • Avatar veronica dire in reply to Burt Likko says:

        @mike-schilling — Well, things are manifestly better now everywhere in the US, compared to forty years ago when being a lesbian was an active crime that was often enforced by extra-judicial “corrective rape.”

        So, yeah.

        Another thing, being a top-shelf software engineer (which I believe you are) is going to give you a perspective rather different from most Americans. For instance, imagine if you were instead a perfectly competent, lovely, and hard working dispatcher for a plumbing company in Duluth, but also secretly queer. Sure, you’re good at your job. But you’re not as rare as hen’s teeth. Come out as queer, maybe your hours get cut. Maybe a replacement is hired. Maybe you’re asked to train them.

        This is reality for some people.

        Which all seems a different thing than being the only person on the team who can implement the Paxos algorithm (or whatever).Report

      • Avatar Brandon Berg in reply to Burt Likko says:

        I should clarify that there is a one-time benefit to the incumbent firms, and maybe to those who for some reason are able to take advantage of the infrastructure/subsidy/whatever faster than others. But it’s a one-time thing, and after that the factors of production quickly get bid up to the point where investing in that industry is no more profitable than investing in any other industry, and from then on the benefits get passed on to consumers. Someone who buys into a subsidized industry after the subsidy becomes public knowledge gets no real benefit from it.Report

      • Avatar Mike Schilling in reply to Burt Likko says:


        Really, it’s less privilege than surroundings. Anywhere I’ve worked in the past coupe of decades, if anyone gave a fellow employee grief over their sexuality, the harasser would be punished severely, regardless of whether the victim was irreplaceable or a summer intern. And not because of the law, but because no one would stomach that behavior.Report

      • Avatar Tim Kowal in reply to Burt Likko says:

        I’m not complaining about being “ganged up on.” The only issue is that a certain precondition of debate – assuming the other party’s good faith – is routinely denied me by at least one particular person here. Rather than continue to appeal the denial, I’ve decided to no longer hold forth with that person. That’s all. I’m happy to acknowledge I’ve never had this problem with you, @pierre-corneille.

        The text of ENDA defines “Sexual Orientation” as follows: “The term sexual orientation means homosexuality, heterosexuality, or bisexuality.” So while you are correct that the protected class is “sexual orientation,” it is defined to include those three sub-classes.

        “Orientation” itself is a loaded term, seems to me. What I am pointing out is that there is not nearly as much consensus about whether bisexuality or transgenderism are benign as, say that LG is. Some might assume they are merely because the LG orientations have been deemed to be so. I’ve not studied the subjects much, but this seems to be clear error. Besides, some part of the public determination re LG was a result of “knowing someone” who was L or G, and some other part was the pain of epithet. And those factors have nothing to do with getting to a real understanding of what we’re talking about. Maybe I’m foolish to get in on the ground floor of the latest social science-led culture war, but what can I say—in for a penny, in for a pound.

        As for what we’re talking about, the confusion is already percolating. @burt-likko suggests we consider that “B” is closer to “LG” than it is to “T.” Seems plausible to me, but “closer” in what sense, exactly? Are we at risk of misunderstanding if we assume too close an understanding, the basis of Sherkat’s criticism of Regnerus? Can we use any of the social science data about LGs in understanding bisexuality? What is safe and what is suspect?

        And how much can we trust social scientists on these “culture war” issues? Leon Kass of the University of Chicago and Harvey Mansfield of Harvard University submitted an amicus brief to the Supreme Court cautioning that social scientists are sometimes heavy on the “social” and light on the “science”:

        “The social and behavioral sciences,” they write, “have a long history of being shaped and driven by politics and ideology.” They note pointedly that two generations ago, the “scientific consensus,” as represented by the American Psychiatric Association, was that homosexuality was a “mental disorder.” The consensus was publicly reversed in 1973, and science, to paraphrase Mae West, had nothing to do with it: Both positions, before and after, were determined by political and cultural considerations.”


        And there’s this from The Chronicle of Higher Education (http://chronicle.com/article/As-Dutch-Research-Scandal/129746):

        “Psychology, he argued in a recent blog post and an interview, has become addicted to surprising, counterintuitive findings that catch the news media’s eye, and that trend is warping the field. . . . In a forthcoming paper, also to appear in Psychological Science, Leslie K. John, an assistant professor at Harvard Business School, and two co-authors report that about a third of the 2,000 academic psychologists they surveyed admit to questionable research practices. Those don’t include outright fraud, but rather such practices as stopping the collection of data when a desired result is found, or omitting from the final paper some of the variables tested.”

        To Burt’s point about “the fair way” to handle anti-discrimination law, this begs the question that the dissociation of gender from biology and the consideration of anything that might be called a sexual orientation are as benign as race, and thus just as improper and evil to consider them in making private sector decisions. We may simply disagree about that. I’ve pointed to the McHugh article that informs my view on this subject, but I’d be happy to consider what others have to offer.

        Until then, my concern – reasonable, it turns out, in the case of AB1266 and the LAUSD’s parental-exclusion policy that seems poised to become the model for the state – is that public policy will glibly obliterate established notions of gender and sexuality even while psychiatrists are working through many difficult questions about pathologies concerning human gender and sexuality. What happens to children who are confused? Schools now offer them showers and bathrooms and will aid and abet children’s alienation from their parents. After graduation, then what? Hormone therapy, perhaps even gender reassignment surgery? Parents will have found out too late. And then what, after the same problems with relationships, work, and emotions continue, having received treatment only of the symptoms – if bathroom autonomy and happy talk from school administrators can be credited as “treatment” – and none of the underlying causes? Has anyone thought through these questions? Did anyone even ask?

        These policies have all the marks of feeling good without the serious work in assuring they’re actually doing good.Report

      • Avatar Rod in reply to Burt Likko says:

        @tim-kowal , regarding your worry that the push for BTQ (and perhaps LG as well?) rights is based more on social fashion than science (at least that’s how I read you) I have to ask, Has it ever been otherwise, regardless of the direction of movement? I was just reading a book review on NPR of an English translation of Lives of the Caesars by Suetonius and ran across this passage:

        Suetonius was surprised that Claudius evidenced a wild passion for women but not a jot for men. Back then, there was no concept of heterosexual or homosexual. Sex was sex: Have at it. But Claudius denied himself the pleasure of half the human race.

        Now I’m not saying that attitude was correct or incorrect, just that it’s always been a cultural thing, full stop, and purportedly objective truths on the issue rely on the selection of criteria and standards which itself is a subjective exercise.Report

      • Avatar Alan Scott in reply to Burt Likko says:

        Are we at risk of misunderstanding if we assume too close an understanding, the basis of Sherkat’s criticism of Regnerus? Can we use any of the social science data about LGs in understanding bisexuality? What is safe and what is suspect?

        @tim-kowal , at this point, I’m assuming you haven’t actually read Sherkat’s criticism of Regnerus–only read Lopez’s response to it.

        Sherkat’s criticism of Regnerus has nothing to do with bisexuality as a sexual orientation. It’s about how Regnerus’s classification methods results in a study about children raised by same-sex couples whose subjects were, as it turns out, mostly not raised by same-sex couples.Report

      • @tim-kowal

        Thanks for responding, and thanks for clarifying that you understand ENDA as protecting orientation and that your objection appears to be toward including bisexuality on that score. I personally have a hard time seeing bisexuality as not an orientation. Perhaps that’s because my definition of sexual orientation is so question-begging that it includes bisxuality by default? Still, most common sense definitions of sexual orientation that I am aware of, which go mostly like “the gender(s) with which one prefers to engage in intimate relations,” seem also by definition to include bisexuality.

        I do understand your point, if I’m reading you correctly, that perhaps discrimination based orientation is not systematic enough to justify the kind of intrusion into an employer’s liberty that something like ENDA would presumably require. I’m pretty sure I disagree. In part, my disagreement is because for the LGB person, the discrimination probably feels systematic in 2013 even if it’s not systematic in the same way that, for example, Jim Crow was or that high correlations of race and poverty/affluence are now. I also disagree that identifying a type of discrimination as “systematic” is the right criterion for judging such laws. I think certain forms of discrimination can be so invidious in themselves, regardless of whether it’s particularly systematic, that basic fairness and respect calls for statutory protections. Your standard, then, (if I read you right) is a bit tighter than mine, and that’s where we disagree, I think.

        As for transgenderism and the disentangling of “gender” from “biological sex,” I do suggest that the disentangling is not new, but rather it’s newly acknowledged. The old laws/doctrines of coverture may have had some of their justification based on women’s presumed “natural weakness” or whatever, but in practice their status as second class citizens (which was enforced by coverture, among other institutions) was marked more by their access to legal rights and rights to legal property than by their actual sex.

        You fear that including transgenderism as part of gender in anti-discrimination law is a wedge in which the state can intrude between children and their parents seems like a weak reed to base your objections on. I don’t think it’s not a potential problem, but I do wonder how pervasive that problem would be, and although I don’t have a crystal ball, I suspect the problem would never be pervasive.

        But another objection, one not based on the presumed pervasiveness of the “problem,” is based on the fact that the state already does intrude onto parents’ prerogatives when the exercise of those prerogatives is harmful to the child. If a child truly is confused or undecided about his or her gender identification, and the parent punishes the child for the confusion and indecision, something is wrong there and depending on the situation might demand some sort of redress. That’s a basket of worms all by itself (and I’m not sure to what extent I endorse state intrusions into parental prerogatives), and even your example doesn’t go that far. Instead, you go into whether schools should provide transgender-friendly accommodations. I have a hard time seeing how that is a wedge against parental prerogatives (and some parents might be understanding or supportive of a child’s gender exploration). Instead, I see such accommodations as akin to measures taken by schools to combat bullying.Report

      • Avatar J@m3z Aitch in reply to Burt Likko says:

        The only issue is that a certain precondition of debate – assuming the other party’s good faith – is routinely denied me by at least one particular person here.

        Heh. The good faith assumption is a tentative thing. It does not simply hold through all debate regardless of what the person ever says. At a certain point the demand to be treated as arguing in good faith is no more than a tactic to avoid criticism of one’s arguments.Report

      • Avatar Pierre Corneille in reply to Burt Likko says:

        If a child truly is confused or undecided about his or her gender identification,

        I don’t mean to imply that transgenderism is reducible to confusion or indecision, just that children might very well be confused or undecided about such things.Report

      • Avatar veronica dire in reply to Burt Likko says:

        @pierre-corneille — The fact is, sometimes we trans people are confused about our gender. I mean, of course we are. Discovering that you’re trans is weird, terrifying, and often non-obvious.

        (Look, our spines don’t glow or anything. Many of us spend much time struggling with the question, am I trans?)

        But here is the deal: there is nothing wrong with being trans. There is nothing wrong with changing your sex/gender.

        It’s that simple.

        Let the kids experiment. If a child is “leaning trans,” let them try it out for a while, see how it feels.

        Okay, so the medical stuff is more serious, and the surgeries are pretty irreversible. But then, how many sixteen-year-olds are getting vaginoplasty?

        (Answer: I think pretty much none.)

        The current standards of care recommend HRT be held off for younger teens, and instead that hormone blockers be used to delay puberty, to give the teen a chance to explore and be certain, while not to condemn those do go full trans to a life of bodily dysphoria.

        This is a sensible response.

        Our cis critics seem to think we need to justify our gender to them, that if we can convince them that were are sufficiently sick and broken, then maybe they’ll let us switch.

        My answer to that is fuck off.Report

      • @veronica-dire

        Thanks for chiming in. I really do have much to learn about transgenderism.Report

    • Avatar Tim Kowal in reply to Tim Kowal says:

      “My understanding is the California law requires a medical diagnosis of Gender Identity Disorder (soon to be renamed “Gender Dysphoria” in the new DSM).”

      Veronica, that is not correct. AB1266 provides: “A pupil shall be permitted to participate in sex-segregated school programs and activities, including athletic teams and competitions, and use facilities consistent with his or her gender identity, irrespective of the gender listed on the pupil’s records.” No requirement of any medical or other “diagnosis.”

      Indeed, I researched whether a child’s gender self-selection would be subjected to any scrutiny. Guidelines published by GLSEN provides that schools “may ask for information to show the gender identity or expression is sincerely held,” although no medical information should be required. The Los Angeles Unified School District Reference Guide dated February 15, 2005, titled “Transgender and Gender Nonconforming Students–Ensuring Equity and Nondiscrimination,” discourages involving students’ parents in privacy and gender expression and identity issues:

      * “school personnel should not disclose a student’s transgender status to others, including parents.”

      * “When school personnel must contact the parents of a transgender or gender nonconforming student, ‘best practice’ would dictate that the student should be consulted first to determine an appropriate way to reference the student’s gender identity.”

      * “It is strongly suggested that teachers privately ask transgender or gender nonconforming students at the beginning of the school year how they want to be addressed in correspondence to the home or at conferences with the student’s parents.”

      * “In cases where students and parents may be in disagreement about the name and pronoun to be used at school, school officials may refer families to appropriate outside counseling services.”

      The LAUSD representative did indicate they experienced few incidents of abuse of their policy in terms of pranks and goofing off in absence of sincere gender self-reassignment. But that is not the real concern. The concern is that some children may need professional help and that this feel-good policy only assuages the symptoms — and indeed may collaborate in hiding the symptoms from parents — while failing to afford that help to children or their parents.Report

      • Avatar Art Deco in reply to Tim Kowal says:

        I think it was George Will who offered a generation ago that “society gets a drizzle of dumb little laws when it ignores the wise big laws of life”.Report

      • Avatar greginak in reply to Tim Kowal says:

        The “wise big laws of life” are of course the same as what conservatives believe. So how can anybody argue with that.Report

      • Avatar veronica dire in reply to Tim Kowal says:

        Ah. I was misinformed on the specific content.

        However, the text of the law seems fine to me, specifically as it calls for a persistent gender identity. (I don’t recall the exact language, but the various documents that I had to submit to government agencies mentioned a persistent gender identity, “unlikely to change.”)

        I believe that is adequate.

        (Note, many of the conservative opponents of this law have been pushing the idea that “boys will lie to get into the girl’s room,” which is a cynical gender-panic tool. It is bogus.)

        (If you are not pushing that lie, then we can move on.)

        Schools should not “out” queer children to their parents. Full stop. No discussion. If you do not understand why, then you are clueless about our lives.

        (This is a point that is obvious to anyone who has worked with queer youth. Not every family is a happy family. Some parents are cruel.)

        The relationship between gender identity and the mental health profession is complex. However, there is a growing understanding that this is not a “mental illness” in a meaningful sense. Instead, it is clear that our gender identities are real, our dysphoria authentic and justified, and gender transition the only path that lets us thrive.

        (For me, gender transition has been a profoundly positive experience. There are no words.)

        (That said, our lives, including mine, are filled with crushing stigma, and it can be very hard to deal with that. Therapy helps a lot. I support easy access to free therapy for all queer youth. Do you?)

        So on the “mental illness” claim, that is a tool long used by bigots to remove our agency, to undermine our dignity, to deepen our stigma, and to dismiss our lived experience. However, this strategy is becoming increasingly less effective as people learn about us, listen to us, get to know us.

        We really are what we say we are. We always have been.Report

      • Avatar veronica dire in reply to Tim Kowal says:

        On the subject, I can’t help posting this link. To my view, this sums up the “bathroom issue” entirely: http://freethoughtblogs.com/zinniajones/2013/11/transgender-women-in-womens-restrooms-a-purely-imagined-harm/Report

      • Avatar Art Deco in reply to Tim Kowal says:

        [Edited: @Art Deco : Not remotely acceptable. Consider this a warning. -rtk]Report

      • Avatar J@m3z Aitch in reply to Tim Kowal says:


        That is the most vile thing you have ever written here. You are pathetic.

        Veronica, I hope you are aware that his immature and fearful attitude is not indicative of the views of the majority of commenters here. More power to you.Report

      • Avatar Mike Schilling in reply to Tim Kowal says:

        “Society gets a drizzle of dumb little homilies when it ignores the byline and reads a George Will column anyway”.Report

      • Avatar veronica dire in reply to Tim Kowal says:

        @jm3z-aitch — Fortunately the comment was gone before I saw it. But yes, I know the measure of the source.


      • Avatar Art Deco in reply to Tim Kowal says:

        That is the most vile thing you have ever written here. You are pathetic.

        Nothing remotely vile about it Aitch. You’ve been in academe too long and have disordered sensibilities. Sorry for the people who have to deal with you.Report

      • Avatar J@m3z Aitch in reply to Tim Kowal says:

        Nothing remotely vile about it Aitch.

        That crazy Tod, always deleting perfectly inoffensive comments. We’re going to have to have a serious talk with him one of these days. He’s out of control, I tell you!Report

      • Avatar Dave in reply to Tim Kowal says:


        You know Art. Every time his dominatrix takes his gag ball out of his mouth, he’s prone to saying stupid things.


        Free advice – shut the fish up and walk away – NOW!!!!Report

      • Avatar Tod Kelly in reply to Tim Kowal says:

        Apologies that it took a while to decide which direction to go, but after all that…

        Posting privileges suspended for a week, Art Deco. And next time it will have to be permanent.Report

  8. Avatar Trumwill says:

    I’ve mentioned this before, but it seems pertinent to the topic at hand. Back when I was working in Deseret, our legal counsel was fired for being gay. There was no pretense about it. Almost everyone (myself excluded, though, actually) thought that it was illegal and that they were stupid to be so explicit about the reasons for the termination because of course they were going to be sued.

    I should also add that this was the mid-aughts, and even the Mormons seemed to be pretty uncomfortable with it. It came to the point that the edict was passed down that we couldn’t discuss it.

    (The LDS Church itself, to its credit, came out in favor of laws against anti-gay discrimination in jobs and housing. Though religious organizations were exempt, of course. Still.)Report

    • Avatar Burt Likko in reply to Trumwill says:

      The price they paid wasn’t just the loss of someone who seems to have been providing good services (a good in-house counsel is hard to find) but a significant drop in the morale of the work force left behind.

      Maybe gay workers with high or specialized skill levels, like the lawyer in this case, are less in need of ENDA. A lawyer who lost an in-house counsel job for a non-performance related reason seems like a good candidate to hit the ground running and bounce back with a new position quickly. Hopefully he got that.

      But of course we aren’t just talking about high wage earners with high-demand, low-supply specialty skill sets. We’re talking about unskilled or semi-skilled workers, manual laborers and retail jobs making not much more than the minimum wage, and for which too many employers consider all of their employees as fungible, easily-replaced commodities into which substantial investment is doomed to produce a negative ROI. “The cost of high turnover is a busted myth” was not a particularly helpful insight to come flying out of B schools — but then, B schools seem to be heavy on metrics and analytics and light on psychology and culture anyway.

      By which I mean, a calculus of “how much money will we spend defending ENDA lawsuits versus how much money will our gay workers make for us that our straight workers would not otherwise have made for us” is never going to yield a respectful workplace culture and everyone in charge will wind up resentful over all the lawsuits that this culture yields, and not just the lawsuits filed by the gay workers.Report

    • Avatar Will H. in reply to Trumwill says:

      I was wondering about this sort of thing from the other thread. Where you & I differed there was that you would place the burden on employees to show that their faith obligations should be accommodated, while I believe that the burden should properly fall on the employer to show that effort at reasonable accommodation was made.

      How does that differ in this context, if any?Report

  9. And I can say from apocryphal experience advising lots of employers, lots of employees, and teaching lots of students, that nearly everyone I meet,

    You say it’s apocryphal, but is there any evidence that the experience actually happened?

    More seriously, I think Boehner’s statement reflects, or more likely plays on, a widespread (and if I’m right, mistaken) belief that arbitrary termination is, in general, illegal,* and not necessarily on a notion that sexual orientation is a protected category. Mine is perhaps a more charitable reading than Mr. Speaker deserves.

    *I’m no employment lawyer, or any sort of lawyer, but I understand that in general, at will employment allows employers to fire anyone for any reason not prohibited by law or for no reason. I do imagine, however, that if a business has a certain set of termination procedures in place, not following them might constitute a case for contesting a termination.Report

  10. Avatar Boegiboe says:

    The Speaker may not be quite as wrong as you think. The EEOC has found that Title VII already covers gender identity entirely, and that sexual orientation claims based on gender stereotyping are also covered. From the link:

    The EEOC has held that discrimination against an individual because that person is transgender (also known as gender identity discrimination) is discrimination because of sex and therefore is covered under Title VII of the Civil Rights Act of 1964. See Macy v. Department of Justice, EEOC Appeal No. 0120120821 (April 20, 2012), http://www.eeoc.gov/decisions/0120120821%20Macy%20v%20DOJ%20ATF.txt. The Commission has also found that claims by lesbian, gay, and bisexual individuals alleging sex-stereotyping state a sex discrimination claim under Title VII. See Veretto v. U.S. Postal Service, EEOC Appeal No. 0120110873 (July 1, 2011); Castello v. U.S. Postal Service, EEOC Request No. 0520110649 (Dec. 20, 2011), http://www.eeoc.gov/decisions/0520110649.txt.

    You are correct that “Sally,” perversely by virtue of not being obviously a lesbian, would not be protected according to the official findings of the EEOC, and so ENDA would still be valuable. However, the EEOC (or at least Chai Feldblum, when she sat on the EEOC) has also unofficially observed that it may be that any claim based on sexual orientation is actionable under Title VII, because identifying as gay or lesbian is an inherently gendered identification. This may be what the Speaker was thinking of, since he moves in the circles that quietly, unofficially think the game is over.Report

    • Avatar NewDealer in reply to Boegiboe says:

      That is the Pricewaterhouse decision that I mentioned below but I think it is too much of an indirect round about. Courts can get around this is they so desire.

      You can’t really get around a direct statement.Report

    • Avatar Burt Likko in reply to Boegiboe says:

      Which is right, as things currently stand — but as new leadership rotates in and out of the EEOC, that interpretation may change. I have to admit that were I an EEOC commissioner, I would not interpret Title VII as including “sexual orientation” within “sex.” If Employer consistently imposes adverse employment actions against gay men that are consistently not imposed against straight men, then it seems clear enough to me that the basis of Employer’s apparently discriminatory conduct is not the maleness of the employees.Report

  11. Avatar NewDealer says:

    “an erosion of civil liberties”

    One of the one million signs that I’m a liberal-Democratic voter and just meant to be because this makes no sense. The right to discriminate is not an issue of civil liberty. The right to fully participate in economic and civic life is an issue of civil liberty. Though like you I support EDNA. What the opponents are advocating for is not civil liberties but the entrenchment of privilege and bigotry.

    Though I’ve also voiced my opposition to the at-will doctrine before and generally support Just Cause employment laws. Termination should happen because of performance, economics (lay-offs are sometimes a painful necessity), mutual agreement, or being an inhospitable at work to your colleagues. That is it.

    I’ve not been following the debate closely though. Has anyone brought up that Pricewaterhouse kind of gives indirect protection to homosexuals because it gave a cause of action to people who do not conform to gender stereotypes?

    For those who don’t know, Pricewaterhouse was a case from the 1980s. A female accountant was frequently denied promotion for being too aggressive, dressing in too manish a way, etc. The Supreme Court said she could proceed with her gender discrimination case because refusing to promote someone for failing to adhere to gender stereotypes was a form of discrimination. What was not said at the the time (this was in 1988 or 1989 so right after Bowers v. Georgia) was that the plaintiff was a lesbian woman.Report

  12. Avatar Squeelookle says:

    I am trying this again because I once again saw an error saying “duplicate comment detected” and now can’t see my comment.

    I have a neighbor who was just fired from her job because the employer found out she is married (in another state, since our state doesn’t have marriage for non-hetero on the books) to a woman. The two of them are moving back to Denver in a few weeks because of this, planning to live with her parents for a while until one of them can find enough employment to support their family again. The assertion that John the Orange makes is simply a lie, and ENDA is desperately needed. Nobody should be fired for who they marry.

    For all who say they should file under the Pricewaterhouse decision two things come to mind. First as others have mentioned that’s not ironclad and subject to a lot of pretexting, which is also why at-will employment laws are a license for assholes to practice discrimination. Second there’s the simple access factor, how does a fired person manage to lawyer up and fight it unless they can get into a class action suit or else be one of the Fortunate Few who can get their cases taken pro-bono by an outfit like Lambda Legal?

    Discrimination in the workplace is not normally the subject of frivolous lawsuits. If anything it is far under-reported and under-litigated because of the real problem, access to the courts in general. Far too few lawsuits are filed because when you’re fired and trying desperately to find work and feed your family, the last thing on your mind is figuring out how to pay some overpriced lawyer to take your case in hopes that maybe, 5-10 years from now after the over-lawyered corporation on the other end drags things out and buries you in paperwork and legal fees and filing fees and appeals, you just maybe might get some pittance of a settlement.Report

    • Avatar NewDealer in reply to Squeelookle says:

      Just to be clear I’m not arguing for people to fire under Pricewaterhouse. I’m just curious if people are using Pricewaterhouse as a reason not to support EDNA.

      I support EDNA and hate the at-will doctrine.Report

      • Avatar Squeelookle in reply to NewDealer says:

        I know too many people who are victims of the at-will doctrine. Fired for the stupidest things, such as someone not liking that they didn’t intend to have kids, or because they had the gall to get a second earlobe piercing, or simply because the employer decided they “looked like a lesbian” after a short haircut. The whole idea of “at-will employment”, where someone gets the right to dictate your entire life outside of work on pain of loss of a job, is patently offensive when you find out what people who worked very hard at their jobs have been fired for. The worst part is that even if ENDA is passed, employers in “at-will” states will probably get away with claiming “at-will employment” as a defense against lawsuits for a long time since in an at-will state they don’t even have to give a pretextual reason to fire someone. At-Will Employment is a failed idea an affront to human decency.Report

      • Avatar NewDealer in reply to NewDealer says:

        Now this is probably a question for Tod Kelly


        Have you ever dealt with at-will in your risk management days? Was there ever a company that faced bad PR or an inability or retain employees thanks to some really silly uses of the at-will doctrine? Are employers advised not to take it literally?
        Yes you can fire someone for wearing an orange shirt but that is a really bad idea…”Report

      • Avatar Tod Kelly in reply to NewDealer says:

        @newdealer: I have indeed had a lot of experience, and have written more than my share of at-will policies for a wide variety of employers. And what I always say first about them is this: At-will policies are pretty widely misunderstood by both their defenders and detractors.

        First off, even though you may have an employee handbook that says you can fire anyone for any reason, you really can’t — and I don’t care what state you live in. (In fact, I’d be willing to bet that some part of @burt-likko ‘s most marvelous home was paid for because one or more of his clients wrongly assumed this was the case.)

        But past that, my experience is that at-will policies almost never get companies in hot water from a PR standpoint, and they generally don’t piss off employees that are fired. Bad management does that, and you tend to be able to find bad management regardless of what your EEH or you state employment law says.

        For example, in Squeelokle’s example of having heard of an employee being fired for having children, my experience suggests that there are one of three things going on: The story is apocryphal, the employee says/believes that’s why they were fired erroneously, or someone who should never have been allowed to manage people (and probably won’t for long) did something boneheaded and, probably, suit-worthy.

        None of those possibilities require an at-will termination policy in order to make it happen.Report

      • Avatar Mike Schilling in reply to NewDealer says:

        something boneheaded and, probably, suit-worthy.

        That’s how I feel about people who wear suits too.Report

      • Avatar Burt Likko in reply to NewDealer says:

        Further to @tod-kelly ‘s thoughts, an at-will policy on its face is in my experience totally unobjectionable to nearly anyone. Employees know very well that “we can terminate you at any time for any reason or no reason at all” really means “we can terminate you for any reason we want, except for a BAD reason.”Report

      • Avatar Art Deco in reply to NewDealer says:

        The whole idea of “at-will employment”, where someone gets the right to dictate your entire life outside of work on pain of loss of a job, is patently offensive when you find out what people who worked very hard at their jobs have been fired for.

        Yes, but the converse is that individuals and corporations are compelled to associate with people they would rather not. Which is to say that client groups get the right to dictate to them.Report

      • Avatar Stillwater in reply to NewDealer says:

        Yes, but the converse is that individuals and corporations are compelled to associate with people they would rather not.

        Yes, that’s true, and in my view not a trivial issue.

        Which is to say that client groups get the right to dictate to them.

        Not exactly. It’s not that particular groups are determining outcomes here, but rather the force and acceptance of certain principles. Take a trivial example: should a person engaged in hiring be allowed to base employment choices on the color of a person’s skin? Maybe. But there are compelling reasons why they shouldn’t, and the imposition of that view on private individuals who engage in employment is a restriction of their personal liberty.

        I hear ya on this Art, but the both the problem and it’s imperfect solution aren’t as simple as you suggest.Report

    • I am trying this again because I once again saw an error saying “duplicate comment detected” and now can’t see my comment.

      Your comments are being flagged by the system for moderation and/or the spam folder. Those that go into moderation are typically released, though those that go into the spam folder are unlikely to be found. But the system recognizes that the comment your making is the same as a comment in the spam folder, and so it tells you there is a duplicate.

      The long and short of it is that sometimes you’re going to need to post a comment more than once, and make sufficient changes to it that it doesn’t register as a duplicate. I don’t know how extensive those changes need to be, but it looks like in this case adding a paragraph was sufficient.Report

    • Avatar Burt Likko in reply to Squeelookle says:

      how does a fired person manage to lawyer up and fight it unless they can get into a class action suit or else be one of the Fortunate Few who can get their cases taken pro-bono by an outfit like Lambda Legal?

      That, of course, is why there are fee-shifting clauses within anti-discrimination laws and contingent fee arrangements. I don’t want to say just how much of my own house has been purchased with the fruits of such provisions of law, but it’s more than just the light bulbs. And for that to work, there has to be a viable cause of action. As I indicated in my second footnote to the OP, when there is no viable cause of action, the employee is left with no remedy. That’s fine from a public policy standpoint, if the actual basis for termination is something that we think it is a fair basis for termination. “At-will” laws allow for a broad interpretation of that in particular circumstances, and that may very well be an appropriate public policy to adopt. But there is also a laundry list of things that there is a pretty substantial consensus are bad reasons to terminate someone, and given that being gay is something that I believe, sense, and read is pretty well within the universe of things that there is consensus out there to make a bad grounds for termination, I say that the people as a whole want something like ENDA to be the law.Report

    • Avatar Art Deco in reply to Squeelookle says:

      The assertion that John the Orange makes is simply a lie, and ENDA is desperately needed.

      No, it is a bon bon for certain client groups. There is nothing particularly desperate about it, even for the client groups (unless it is your assumption that a single instance of someone being ejected from their job is a social crisis).Report

  13. Avatar Art Deco says:

    Regular readers of my work here will be unsurprised to learn that I applaud the Senate’s action and urge the House to similarly pass ENDA so that the President can sign it because there is no good reason I can think of to regulate against racial and sex discrimination in employment but not to regulate against sexual orientation and the related issues.

    Why not repeal the regulations in toto? The last thing we need is more sclerosis in the labor markets or more second-guessing by lawyers of other people’s decisions.Report

    • Avatar Lyle in reply to Art Deco says:

      Ok lets go back, and clearly we have no Irish need apply. Further during the 1920s we had no Catholics need apply, a bit earlier (and this was federal law no Chinese need come to the US you won’t be let in unless you have a relative that was here at some earlier date). During WWI I suspect there was no one of German heritage need apply, one could go on about this. Henry Fords Social department which determined if your life style qualified for a bonus could then be implemented where if only if you exhibit a proper lifestyle do you get to keep your job.Report

  14. Avatar Kazzy says:


    Well, now we get into definitions. What makes something a relationship? Two people having sex absent romantic involvement is still a relationship, as far as I’m concerned.

    I don’t know all the details of ENDA. Were I crafting legislation, I would say that it is wrong to discriminate against ANYONE based on their race, gender, religion, ethnicity, nationality, and sexual orientation (and possibly other things). This would extend these protections to all. So Apple can’t refuse to hire black people, nor can the NAACP refuse to hire white people. Gap can’t refuse to hire gay people, nor can the Human Rights campaign refuse to hire straight people.

    Provided the sexual conduct is legal, it is no business of the employer what an individual does in his or her bedroom. This is the position I am staking out.

    If you disagree with this position, where and why is your disagreement?Report

    • Avatar Pierre Corneille in reply to Kazzy says:


      Were I crafting legislation, I would say that it is wrong to discriminate against ANYONE based on their race, gender, religion, ethnicity, nationality, and sexual orientation (and possibly other things)

      It’s my understanding–and one of Burt’s comments above seems to corroborate it–that that is the way such anti-discrimination laws tend to work.Report

    • Avatar Tim Kowal in reply to Kazzy says:

      We agree on the definition of “relationship,” though it does carry connotations that probably suggest/imply something narrower than “conduct” or “activity,” and thus if one’s purpose is to extend greater state protection, conduct/activity would be preferred.

      You and I obviously find the threshold of justifiable or prudent state action at different levels, but otherwise and subject to the qualifications I outlined above, we don’t too profoundly disagree. Musing aloud here, I might not be completely convinced (though I used to be) that all anti-discrimination needs to be reciprocal. We’ve never had much of an issue in this country of wrongful discrimination against white people. (Irish & Germans, etc. have suffered in the past, but not any longer as I can personally anecdotally attest.) The reason we have laws against racial discrimination is because certain races were wrongfully discriminated against. Now, as a prudential & political matter, perhaps we need to have a wholesale anti-racial-discrimination principle — hard to sell a policy that only concerns a specific list. But in principle, there is no real need for such policies to be overbroad. And were we ever to reach the golden shores of true racial equality and brotherhood, I should like to think we can repeal all those laws, as they would have become as unnecessary as laws prohibiting discrimination against people with freckles, and thus should share the same existential fate.Report

      • Avatar Kazzy in reply to Tim Kowal says:


        What is the risk of anti-discrimination rules being too broad? And how does this risk compare to the risk of such rules being too narrow?Report

      • Avatar Tim Kowal in reply to Tim Kowal says:

        At a very general level, we should note that law is disruptive and thus we should err on the side of not passing useless and overbroad laws. If we are concerned a particular law or proposed law is too narrow, we should ask whether there is a history or pattern of wrongful conduct to be addressed by making the law broader. We shouldn’t make laws broader than necessary “just because.”Report

      • Avatar Burt Likko in reply to Tim Kowal says:

        If I may jump in here, I can see a public policy risk of having too many arenas in which anti-discrimination litigation occurs. Litigation has a high transaction cost in dollars, time, effort, and stress, and there is little reason I see to doubt the prevailing wisdom that it serves as a net drag on economic activity. @tim-kowal uses the example of “laws prohibiting discrimination against people with freckles,” and has previously indicated that we ought to use as a metric for when such a light might be adopted as a showing of an enduring pattern of invidious discrimination against a particular group. To this I responded that a superior level of analysis is a search for an enduring pattern of invidious discrimination based on a particular characteristic.

        I see the golden shore of a society free from racial bias, or at least free enough from it that its rare occurrences are of minimal impact, as well out of our reach from a generational perspective. This may be a function of faith, it may be a function of my experience seeing the impact of invidious discrimination lensing my view of facts. Perhaps a skeptical view of accretion to our anti-discrimination laws arises from optimism that a sufficiently unbiased society is close enough to our grasp? That would, at least, be a pleasant fiction for which I would fault no one for both wanting and thus perceiving.Report

    • Avatar Fnord in reply to Kazzy says:

      I don’t think it’s productive to limit the discussion to “relationships” in the first place. You don’t become gay/straight the first time you have sex. Nor do I think that a sexual orientation antidiscrimination measure need bar employers from making decisions on the basis of (eg) extramarital sex, provided they treat hetero- and homosexual affairs equally.Report

  15. Avatar LWA says:

    This thread is an example of why I think it is so fruitless to position this in the language of individual rights, turning our provate lives into a zone of “You may not intrude here”.

    Although well intentioned, they are sort of a liberal version of Don’t Ask Don’t Tell. They assume a magic dividing barrier between the personal and the political. It assumes there is a meaningful difference between social norms and laws, when in fact laws are nothing but social norms enforced.

    The moral utility of liberal tolerance is vastly overvalued. No one wants to be tolerated. Asserting “I don’t care what you do in your private life” throws it into some murky area of moral confusion, where it exists alongside things which reasonable people- or specifically, the society whose inclusion we crave- views as immoral, disgusting.

    There was a time, say, in the 1970’s, when a liberal might have actually said “Hey, I’m cool with you liking men! Man on man sex , man on dog sex, whatever dude, I don’t judge!”. If this is tolerance, who needs Rick Santorum?

    Like Catholics, Jews, Irish, and black people before them. gay people want to be included, their identities held in honor and respect, not hidden behind a cloak, not banished from the public square, forced behind closed doors between consenting adults. The logic of individual rights doesn’t get us to this point of respect and honor.

    Conservatives, I think, grasp this better than many liberals. We exist in a complex web of personal, professional, religious and political relationships.
    Society isn’t just the creation of laws and regulations, but the sum total of all these relationships and groups.
    I’m drawing here on the idea that society- all those institutions- has a purpose beyond just allowing us to pursue our own desires, but exists for the purpose of creating a harmonious union, fostering patriotism and a sense of kinship.

    Conservatives also raise a good question- where do we draw lines? Are we to cheerfully accept man on dog sex, since, as so many liberals point out, what we do in our bedroom is no one’s business?

    Like Jonathan Haidt’s experiments with nonharmful taboos, I think it helps to widen the set of rhetorical tools, beyond merely individual rights and harm. By including concepts like human dignity, the right use of creation, or setting sexuality in its proper role in the workings of families and communities we can achieve a societal consensus that allows us to form a better more unified society.

    For example- there are conservative arguments to be made that homosexuality is a morally valid identity, God’s way of helping us understand gender, while criticizing beastiality as a form of narcissism that retards our growth as spiritual beings.

    But in order to do this, we have to turn the impenetrable barrier of private rights zones into a modified semi-permeable barrier where society has some legitimate role in assigning normative concepts to our private lives.Report

    • Avatar Burt Likko in reply to LWA says:

      This is a remarkably generous and charitable read of conservative thought, @lwa . I have maintained for a long time that contemporary American conservatism, at its best, is about discerning and preserving that which is good in our norms and institutions, and contemporary American liberalism, at its best, is about empowering individuals that they may stand on an equal footing with those institutions.

      I’m doubtful I’d have framed the matter of “rights” in quite the way you have, and I see ENDA as more of a question of a remedy than a right — to the extent that there is a right at play, ENDA is a statute and not an interpretation of the Constitution so it’s not necessarily a “fundamental” right, and my own construct of “rights” is a bit different than yours, such that power exercised between two private actors is not properly a “right.”

      Looking at it in terms of privacy rights, identity rights, and activity rights (as you’ve framed them) isn’t it more accurate to say that none of these rights are absolute? At some point, they must be balanced against one another. One might say that the right to engage in sexual activity privately is very strong, but we can’t say it’s absolute — generally, there is consensus that other people and society in general have little interest in what two consenting adults do behind closed doors, but that concedes that society in general has an interest in ensuring that these sexual actors are consenting and that they are adults. Rape victims do not consent. Dogs are not adults. Children are not adults.

      And it turns out a good deal of where “culture war” issues are is the location where “rights” that individuals have against one another, or against the government (my construct), or against society in general, overlap and reach their fuzzy limits.Report

    • Avatar J@m3z Aitch in reply to LWA says:

      While I’m by no means in complete agreement (and emphatically second Burt’s comments about consent), this is exactly the kind of argument I’ve been asking for from LWA.

      I should add that I’m also by no means in complete disagreement.Report

  16. Avatar Brandon Berg says:

    Speaking of “Governor Moonbeam,” I ran across this story a while back and it blew my mind:

    In September 1977, California assemblyman Willie Brown served as master of ceremonies at a large testimonial dinner for Jones attended by Governor Jerry Brown and Lieutenant Governor Mervyn Dymally. At that dinner, Brown touted Jones as “what you should see every day when you look in the mirror in the early morning hours… a combination of Martin King, Angela Davis, Albert Einstein… Chairman Mao.”

    The Jones referred to was Jim Jones. Yes, that Jim Jones. And I can see giving him a pass on praising Jim Jones, since at that point the whole Jonestown thing hadn’t happened. But praising Jones by comparing him to Mao Zedong, in a list with Martin Luther King and Albert Einstein? How do you come back from that and get reelected as governor? How was that not in every Republican ad during his last campaign?Report

    • Avatar Brandon Berg in reply to Brandon Berg says:

      By the way, I had absolutely no idea that Jones had had such a prominent role in the Democratic Party. Is this common knowledge among people not old enough to remember it?Report

      • Not enough voters remember who Jim Jones was. As shocking and horrifying as the conclusion of his tale was, it’s been papered over by a hodgepodge of equally if not more horrifying intervening events, and the victims no doubt “don’t count” or at least “count less,” because after all, they forsook their families, religions, and country to follow a weirdo cultist. Sad and unfair, but that’s my read of the zeitgeist.Report

      • Avatar Mike Schilling in reply to Brandon Berg says:

        Jones was influential in San Francisco politics for the usual reasons: money and votes. That’s nothing like having “a prominent role in the Democratic Party”.Report

    • Avatar Kim in reply to Brandon Berg says:

      Poor research. typical republicans.Report

    • Avatar Mike Schilling in reply to Brandon Berg says:

      You need to read that more carefully. Willie Brown, who’s the one being quoted, was never elected to statewide office.Report

      • Avatar Brandon Berg in reply to Mike Schilling says:

        Oh, that makes more sense. I totally missed the fact that there were two Browns in that story. Thanks!Report

      • Avatar J@m3z Aitch in reply to Mike Schilling says:

        I saw Willie Brown in action one time. A friend of a friend who was a lobbyist got us onto the floor (at the back of the room) of the state legislature while it was in session. While somebody was droning on at the speaker’s podium, Brown was moving around the room from legislator to legislator, shaking hands, talking close, and giving no evidence of paying any attention to what the speaker was saying. Then suddenly he stopped, pressed the mic button on the desk of the guy he was glad-handing, and said something like, “point of order; under assembly rules 57Cpoint3point2dash7, we cannot do what the speaker has suggested…” And everybody just accepted his word on it.

        He was a masterful politician and legislator.Report

      • Avatar Mike Schilling in reply to Mike Schilling says:

        Willie Brown was always the smartest guy in the room. In 1995, after decades of Democratic majorities, the Republicans finally had a one-vote majority in the Assembly (41-40, with one seat vacant.) While they were congratulating themselves on finally getting rid of Brown as speaker, he found a disgruntled GOP backbencher, offered his united 40 Democratic votes to make her speaker, and continued to rule through her.Report