The SOGI law will hurt business owners, schools, the military

Trade Tripper
Jemy Gatdula

Posted on March 27, 2015

Simply put: to create “rights” based on purported sexual orientation or gender identity (SOGI) is bad policy, without basis, and wholly problematic. It will lead to substantial long-term confusion and (ironically) discrimination. As I pointed out in my congressional testimony, in the end there is no such thing as SOGI rights, there is just human rights.

Witherspoon Institute’s Ryan Anderson pretty much said the same thing when he testified before the US Congress on the Employment Non-Discrimination Act Bill. In an article based on his own testimony (“Sexual Orientation and Gender Identity Are Not Like Race: Why ENDA is Bad Policy,” March 2015), Mr. Anderson emphasized the ambiguous nature of sexual orientation or gender identity: “Social science research continues to show that sexual orientation, unlike race, color, and ethnicity, is neither a clearly defined concept nor an immutable characteristic of human beings. Basing federal employment law on a vaguely defined concept such as sexual orientation, especially when our courts have a wise precedent of limiting suspect classes to groups that have a clearly-defined shared characteristic, would undoubtedly cause problems for many well-meaning employers.”

“McHugh and Bradley caution against elevating sexual orientation and gender identity to the status of protected characteristics because of the lack of clear definition: ‘There is no scientific consensus on how to define sexual orientation, and the various definitions proposed by experts produce substantially different groups of people’.”

The point is that, no scientific consensus exists that homosexuality is genetic. And there is no consensus on the nature and origin of sexual orientation. This is significant. Because in order for a penal law, such as the SOGI bill, to be effective, it must be:

a) able to identify properly those covered by the protections it offers; and

b) capable of being implemented by the police or judicial system in terms of evidence.

The SOGI bill does give definitions of “gender identity” and “sexual orientation” but they are unfortunately (and expectedly) ambiguous and superficial. Much of what can constitute identity or orientation cannot be seen through clothing or even at skin level. And yet, the State is expected to punish individuals (e.g., employers, faculty administrators, business owners, ordinary service employees, etc.) for any failure on their part to identify due to lack of workable standards on the very particular kind of person covered by the bill.

There is also the difficulty of proving that one has indeed been discriminated due to gender identity or sexual orientation (and not for any other reason), and of proving that such a status of gender identity or sexual orientation did exist at the time of the supposed discrimination.

In other words, there is the failure to identify the evidence necessary that must be presented to our courts that at the time of the supposed discrimination taking place the person making the claim is indeed covered under the purview of the provisions of the SOGI bill and that the person or persons committing the discrimination did so because of that complainant’s sexual orientation or gender identity and not for another (justifiable) reason. This difficulty is heightened because of the possibility that sexual orientation can unilaterally change through time.

Mr. Anderson also effectively put down the mistaken notion that sexual orientation is similar to race: “While race implies nothing about one’s actions, sexual orientation and gender identity are frequently descriptions for one’s actions: ‘gay’ denotes men who engage in voluntary sex acts with other men, ‘lesbian’ denotes women who engage in voluntary sex acts with other women, and ‘transgender’ denotes a biological male who voluntarily presents himself to the world as if female or a biological female who voluntarily presents herself to the world as if male. ‘Race’ and ‘sex,’ by contrast, clearly refer to traits, and in the vast majority of cases denote no voluntary actions.

“Bans on interracial marriage and Jim Crow laws, by contrast, were aspects of an insidious movement that denied the fundamental equality and dignity of all human beings and forcibly segregated citizens. When these interracial marriage bans first arose in the American colonies, they were inconsistent not only with the common law inherited from England, but also with the customs of prior world history, which had not banned interracial marriage.”

Finally, despite the quite limited size of the LGBT population (a recent US study pegs its own LGBT population to 2-5% of population, the Philippine demographic will not be too far off), the SOGI bill quite irresponsibly failed to consider the obvious effects it will have on the great majority of Filipinos. Judging by the usual listing that LGBT advocates have regarding the ‘rights’ they are pushing for, such will involve laws relating to employment, military service, adoption, marriage, student activities, parenting, schools, religion, and government identity documents.

Truth is, we don’t need a SOGI law as we already have SOGI laws: among others, they are called the Constitution, the Civil Code, the Revised Penal Code, and the Labor Code.

Jemy Gatdula specializes in international economic law (WTO and ASEAN), and teaches international law and legal philosophy at the UA&P School of Law and Governance.



Mr Gatdula is also on Facebookand Twitter