Big Brother would proud of the “gender identity” language of ENDA, the Employment Non-Discrimination Act of 2013 approved last month by the Senate.
ENDA supporters claim the measure prohibits hiring and employment discrimination on the basis of sexual orientation or gender identity, but it serves mainly to expand thought policing in society and government control over the private sector.
House Speaker John Boehner has said the House won’t consider ENDA, but let’s not underestimate the power of political pressure while things seem quiet.
Advocates of ENDA are no doubt smelling out wobbly opponents in the House and will try to smear them into submission.
The House should reject ENDA’s language as a nail in the coffin containing the rule of law and a massive expansion of government power.
It’s a can of legal worms most directly related to “gender identity.” Oddly, the bill doesn’t define gender at all, but defines “gender identity” as:
“The gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual’s designated sex at birth.”
“Gender identity” is an ambiguous term relating to perceptions and sense of self. It can mean “a person's internal sense of being male, female, or something else,” according to the American Psychological Association.
But the Senate has chosen to sow chaos by forcing employers to second-guess the mysteries of “male, female, or something else.”
Here ENDA combines threat of punishment with vague language wide open to interpretation, a classic recipe for tyranny.
Let’s take a closer look at the usage of four terms in ENDA’s language:
“Perceived” — ENDA would prohibit discrimination on the basis of “an individual’s actual or perceived sexual orientation or gender identity.”
Who’s doing the perceiving? This language sets up a legal framework that singles out — either for punishment or special protection — one’s personal perceptions.
How does an employer prove that his perceptions aren’t malicious? And self-perceptions can change over time, so which would be protected?
“Identity” — why should gender identity be the only protected form of “perceived” identity? What about “age identity” discrimination?
It’s far more prevalent that a 60-year-old would identify as 40, or a 50-year-old as 30. And following ENDA’s logic, those who “feel” or “identify” as Native American or African-American, regardless of genetic makeup, should get the full protection of anti-discrimination law.
“Appearance” and “mannerisms” — ENDA’s language would allow the government to bar reasonable discernment based on any sexually oriented appearance or mannerism at all.
It’s disingenuous to think employers will have a final say in office decorum, grooming or dress codes with ENDA because its semantic ambiguity casts the die for all such standards to be ultimately established by judges, bureaucrats and trial lawyers.
“Sex designated at birth” — this suggests a pliability of the term “sex” equivalent to that of “gender-related identity.”
Could “designated at birth” ever come to mean that sex is designated for us at birth? This isn’t all that far-fetched considering that ENDA embodies the surrealism of gender theorists like Judith Butler who advocate the abolition of all sex/gender distinctions.
ENDA promises to place us all in a hall of smoke and mirrors that no one can navigate without government control and intrusion.
It forces adherence to strict, specific, yet ever-changing requirements embodied in the linguistic gymnastics of the gender identity matrix and its “do’s and don’ts” of pronoun use.
If you are an advocate of unlimited government expansion, ENDA is your man, so to speak. Its potential for government heavy-handedness over the private sector is thorough.
ENDA has little to do with “protecting” anybody, and much to do with controlling everybody.
Examiner Contributor Stella Morabito writes on society, culture, and education issues.