Both houses of the Utah state legislature have now passed, and the state’s Republican Governor Gary Herbert has said he will sign, S.B. 296, a bill which purports to be a historic compromise prohibiting discrimination in employment and housing on the basis of “sexual orientation” and “gender identity” (“public accommodations” are not included), while at the same time exempting religious organizations and granting protections for the religious liberty of individual employees.

Endorsement of the bill and its principles by the Church of Jesus Christ of Latter-Day Saints virtually assured passage in the heavily Mormon state. SB 296 was approved 23-5 in the Senate on March 6, and 65-10 in the House on March 11.

Family Research Council does not believe that “sexual orientation” or “gender identity” are characteristics comparable to those which are usually protected categories under civil rights law, because they are not inborn, involuntary, immutable, innocuous, and/or in the Constitution in the way that race and sex are, for example. Therefore, there is no justification in principle for interfering in the private choices of private economic actors with respect to these issues.

I am also skeptical, in the current cultural climate, as to whether the “religious protections” in such a compromise will ever be as vigorously maintained as the “non-discrimination” provisions.

However, there are specific technical problems with the way that S.B. 296 was drafted which should prevent it from being a model for other states, as is being touted by some. (The text of S.B. 296, with lines numbered, is available online at:

http://le.utah.gov/~2015/bills/static/SB0296.html )

Definitions: “Gender Identity”

Two of these problems involve definitions in the bill. The first is found in lines 105-106, where it says:

QUOTE

“Gender identity” has the meaning provided in the Diagnostic and Statistical Manual (DSM-5).

END QUOTE

The “DSM-5” is the “Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition,” published by the American Psychiatric Association in 2013.

It is very odd to have a “definition” in a piece of legislation which does not include what the definition actually is—but instead makes reference to another source (a non-legal, non-statutory, non-constitutional, non-governmental, private source at that).

I think I understand the rationale for this—the authors of the bill want the definition to be scientifically impeccable, and therefore want to reference a scientific source rather than write their own definition. However, this is problematic for several reasons.

The DSM-5 is not only published by a private organization (the American Psychiatric Association), but it is a copyrighted work (could that be why the bill doesn’t quote it?). I have the impression that the APA guards the copyright very jealously, because unlike a lot of copyrighted works, it is virtually impossible to find even excerpts of its text online.

To purchase a copy is very expensive—on Amazon, it is $145 for the hardback version, and $107 for the paperback. Some libraries may have it, but when I went to the Martin Luther King, Jr. Library, which is the main branch of the District of Columbia Public Library, they did not have it—they only had the earlier DSM-IV-TR (2000). All this is to say that it is not all that easy to find out what the definition of “gender identity” in the DSM-5 actually is. It took me several hours of effort (and a trip to the National Library of Medicine) to actually locate it. That hardly seems like the most transparent way of legislating.

While referencing the DSM-5 may make the authors appear to be up-to-date scientifically now, the DSM is inherently a publication under periodic revision. As noted, it was only 13 years between the DSM-IV (2000) and the DSM-5 (2013). So in 13 years, will the up-to-date scientific definition of “gender identity” which Utah legislators referenced in their new law become the out-of-date definition when the DSM-6 comes out? Surely the law cannot be written to automatically be updated to the latest version of the DSM. It would be far better for legislators to actually write down in the text of the law the definitions which they are applying.

When I finally located both the DSM-IV-TR (2000) and the DSM-5 (2013), I found that indeed the definition of “gender identity” had changed. The DSM in 2000 included only this cryptic definition: “A person’s inner conviction of being male or female.”

The DSM-5 definition is longer: “A category of social identity that refers to an individual’s identification as male, female, or, occasionally, some category other than male or female.”

How many of the 88 Utah legislators who voted for this bill understood that they were creating special protections not only for men who claim to be women and women who claim to be men, but also for people who insist that they are neither male nor female?

Definitions: “Sex” and “Gender”

The other problematic definition in S.B. 296 is that of “sex.” On line 777 of the bill, it says:

QUOTE

“Sex” means gender . . .

END QUOTE

Really? According to my dictionary, it’s the other way around. Merriam-Webster’s Collegiate Dictionary, Eleventh Edition (2005), under “gender,” lists “SEX” as a synonym. However, the first definition under “sex” is: “either of the two major forms of individuals . . . that are distinguished respectively as female or male esp. on the basis of their reproductive organs and structures.”

If the legislature wanted to reference the DSM-5 as the definitive source for a definition of “gender identity,” why did it not do the same for “sex” and “gender?”

The DSM-5 definition of “sex” is: “Biological indication of male and female (understood in the context of reproductive capacity), such as sex chromosomes, gonads, sex hormones, and nonambiguous internal and external genitalia.”

On the other hand, the DSM-5 definition of “gender” is: “The public (and usually legally recognized) lived role as boy or girl, man or woman. Biological factors are seen as contributing in interaction with social and psychological factors to gender development.”

These are hardly synonyms, as the bill states. If legislators feel that they must pass laws conceding that one’s “gender identity” can be distinguished from one’s “sex,” at least they should insist that the word “sex” itself be defined in biological terms (as the DSM-5 does), and not by some circular reference to “gender.”

“Religious Liberty Protections”

The second major area of concern is the section with the much ballyhooed “religious liberty protections.” First, the bill exempts “a religious organization” and “the Boy Scouts of America” from its definition of an “employer” subject to the employment discrimination provisions (lines 92-100). Note, however, that this leaves profit-making businesses (such as Christian publishers and Christian book stores) and other organizations like non-religious day care centers still vulnerable to being forced to hire homosexual and transgender persons.

More attention has been focused on the unique “religious liberty protections” for individual employees (lines 693-706). Constituting a scant fourteen lines out of over a thousand in the bill, they read as follows:

QUOTE

69334A-5-112. Religious liberty protections -- Expressing beliefs and commitments in
694workplace -- Prohibition on employment actions against certain employee speech.
695(1) An employee may express the employee's religious or moral beliefs and
696commitments in the workplace in a reasonable, non-disruptive, and non-harassing way on
697equal terms with similar types of expression of beliefs or commitments allowed by the
698employer in the workplace, unless the expression is in direct conflict with the essential
699business-related interests of the employer.
700(2) An employer may not discharge, demote, terminate, or refuse to hire any person, or
701retaliate against, harass, or discriminate in matters of compensation or in terms, privileges, and
702conditions of employment against any person otherwise qualified, for lawful expression or
703expressive activity outside of the workplace regarding the person's religious, political, or
704personal convictions, including convictions about marriage, family, or sexuality, unless the
705expression or expressive activity is in direct conflict with the essential business-related
706interests of the employer.

END QUOTE

At first glance, this passage appears to address some of the “horror stories” that have been in the news regarding punishments or adverse employment actions taken against employees for expressing traditional values on marriage, family, and sexuality either within (lines 695-699) or outside (lines 700-706) the workplace.

However, a huge question leaps out—how are these “protections” to be enforced?

First of all, the exemption from the “protection” if the free expression “is in direct conflict with the essential business-related interests of the employer” (lines 698-99, 705-706) could end up being the exemption that eats the protection. What if an employer has an internal, corporate non-discrimination policy protecting sexual orientation and gender identity, and claims on that basis alone that excluding dissenters is an “essential business-related interest?” In what government forum, if any, could the employee challenge such a determination?

It is notable that a distinction is made between an employee’s free expression within the workplace and outside the workplace. With the respect to the former, there is an affirmative statement of the rights the employee possesses—but nothing regarding an obligation being placed on the employer to respect those rights.

Only with respect to expression outside of the workplace is there an active prohibition of negative action by the employer. To some extent this is understandable—an employer certainly has some legitimate interest in communication that occurs in the workplace, while they have very little legitimate interest in expression outside the workplace. However, it is unclear how that line is to be drawn, or who is to draw it. Allowing the employer to draw it makes the “protections” meaningless, since it is from the employer that the employees need protection.

One answer to this would be to make explicit that a violation of the religious liberty protections in Section 34A-5-112 constitutes a prohibited form of discrimination based on “religion” under Section 34A-5-106 (lines 277-536) of the bill, and is subject to the full set of remedies set out in Section 34A-5-107 (lines 537-673). Since the bill is being sold as one representing vigorous action both to prevent “discrimination” and to protect religious liberty, the mechanisms to advance both goals should be the same in order to assure parity between the two objectives.

The most optimistic view would be that this is already implicit in the bill—but it would be far more reassuring if it were made explicit. Even this approach is imperfect, however, since the “protections” should apply to any expression of opinion on these subjects, even if it is not rooted in a particular religious teaching.

An alternative would be to establish a specific set of remedies for the religious protections in the bill. It might also help to remove the section about “essential business-related interests” from the section dealing with expression outside the workplace.

Without explicit remedies, I fear these “religious liberty protections” will be a toothless tiger.