The homosexual and transgender strife across the country has been cast as a civil rights struggle. So let’s take a look at how this campaign compares on the merits to the great civil rights struggles of the 20th century. From there, we can draw up intelligent argumentation beyond the flippant cries of homophobia and hatred that comes from those promoting a change in the status quo.
The Leadership Conference has compiled an excellent list of important civil rights cases. In looking at the body of case law we can see some patterns of law that are applicable to LGBT issues. First, sexual orientation isn’t protected like race is. Second, protections are granted in instances where animus is the motivating factor. Third, when the cry for rights moves beyond combatting animus and seeks special rights the cry is rejected.
Sex (gender) is protected under the rarely used intermediate scrutiny level of protection. However, the SCOTUS has been reluctant to apply even intermediate scrutiny to sexual orientation cases. Romer v Evans was based on no legitimate government interest – the standard for a rational relationship test. Lawrence v Texas was decided on privacy grounds, not sexual orientation. Obergefell v Hodges was based on the right to marry. Although both of these latter decisions were specifically addressing homosexual activity they were decided on the underlying right involved, not the potential animus towards homosexuals. Although the results were both favorable towards homosexuals, the reasoning the SCOTUS uses doesn’t suggest that sexual orientation is judged by anything other than the rational relationship test.
The transgender argument has a somewhat different analysis. Here, the argument isn’t that sexual orientation is at issue. The argument is that gender identity should be protected the same way as gender is. If that were the case, intermediate scrutiny would be the standard of review. However, getting there is quite a stretch. The first problem is that it seeks protections greater than what are being allowed for homosexual activity. Second, even if a person identifies as one of the opposite gender, the underlying biological gender is still in place. This brings us to the consideration of animus versus special privilege.
The difficulty in giving any serious consideration to allowing transgendered individuals to use the bathroom contrary to their biological gender is that they are seeking special privileges, not combatting animus. Guys go to the guys restroom, it doesn’t matter if they are straight or homosexual. So transgendered individuals aren’t seeking to be treated equally, even with homosexuals. They are seeking an accommodation. Not only is it seeking an accommodation, but it’s insisting on the accommodation of choice rather than an unobjectionable one. A unisex bathroom solves the issue.
Traditionally, protection lies to combat animus. Loving v Virginia struck down a ban on interracial marriages. Shelley v Karemer struck down racially restrictive property covenants. City of Mobile v Bolden required proof that changes were “actually motivated by discriminatory intent” to establish a voting rights act violation. The list could go on and on.
When the dispute is one seeking special privilege the Court rules against those seeking special privilege. Wygant v Jackson Board of Education prohibited the firing of more seniority white workers to protect the jobs of less seniority black workers. City of Richmond v Croson struck down a minority set aside. Shaw v Reno struck down a gerrymandered district designed to elect a minority to office.
Simply put, where’s the hate? The law protects against animus, but does not go so far as to require special privileges. When viewed from this legal prism, the LGBT movement is the problem. The law has very quickly removed animus from being allowed. The new battle lines aren’t one drawn on animus against LGBT, but are drawn on ones where LGBT is demanding special treatment. Can bakers refuse to bake a cake for a party to celebrate terrorist acts? Sure. Why then must they be forced to bake a wedding cake for a homosexual marriage if it’s contrary to deeply held religious beliefs? It’s animus on the part of LGBT to require the Christian bakers do so despite other bakers willing and available.
What about the transgender bathroom issue? Initially, a unisex bathroom would resolve the issue. But let’s suppose that’s not a possibility. The issue then becomes, where’s the animus? It isn’t towards transgendered individuals. It’s towards fear of attack and harassment. It’s not just about pedophilia. It’s also about letting children be children and not have to explain why there’s a guy in the girls restroom. It’s about the rape victim not being forced to share the restroom with a guy. What makes the transgendered individual’s comfort level more important than the rape victim’s comfort level? One has to give. The rape victim is conforming to the norms of society while the transgendered individual is seeking special privilege.
In the end, LGBT issues are about animus. Where’s the hate? Historically, whoever is displaying animus loses. Right now hate is being pushed by LGBT towards those who won’t cave to their demands for special privileges. As society, it’s time to stand up and expose the arguments for what they are – hate against those who won’t give special privileges. We shouldn’t tolerate hate directed against LGBT. We equally should not tolerate hate from LGBT towards those who disagree with them.