No ‘special protections’ here

Posted Friday, Oct. 04, 2013  comments  Print Reprints
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In a column published last Friday (“Special protections should not trump basic liberties”), Ryan Anderson of the Heritage Foundation argues that unlawful discrimination is permissible if the discriminator’s religion requires it.

He posits that outlawing aversion therapies for people under 18 “who struggle with unwanted same-sex attraction” — therapies deemed to be cruel and ineffective by every credible expert — usurps a parent’s authority.

He ignores complex issues of sex or gender identification in his criticism of laws that protect children, which he claims are affronts to parental autonomy.

Anderson mischaracterizes a recent court ruling as adopting “special protections” and argues that laws protecting people from discrimination in public accommodation must yield to religious beliefs.

In New Mexico, a photographer violated public accommodation laws by refusing to photograph a lesbian couple’s wedding.

It would be abhorrent if a photographer refused to photograph a wedding because a couple was of two different skin colors. Certainly, even Anderson would not suggest rolling back public accommodation laws to permit discrimination based on skin color or religion.

Sadly, the same religious freedom arguments Anderson uses were used to justify racial discrimination. The Bible does not forbid slavery, having multiple wives, etc., yet we reject these practices.

In the past, people providing public accommodations relied on the Bible’s affirmations for separating the races as support for their right to deny service to the people against whom they discriminated.

Today, business owners are forbidden to discriminate against patrons based on patrons’ protected statuses. The laws of which Anderson complains do not offer “special protections” but merely provide the same protections in public accommodations offered to everyone.

Anderson expresses shock about laws permitting therapy for children transitioning from male to female or vice versa. These laws protect a small but vulnerable minority.

Anderson’s shock suggests ignorance of complicated issues of gender and sex. Some people identify with a sex or gender that does not match their outward physical appearance. Just as fluidity of gender exists, sex is not a true binary.

Because both medicine and law recognize many determinants of sex, simply reducing all people discretely into two genders or sexes ignores the complexities inherent in identity. Anderson’s apparent ignorance, especially given his association with the Heritage Foundation, shocks me.

Anderson ignores the overwhelming evidence that “therapy” designed to change a person’s sexual orientation is ineffective. Indeed, this “therapy” is often cruel and punishing to children who already face discrimination based on their perceived sexual orientation.

Anderson criticizes laws that protect these vulnerable children from interventions that are ineffective at best and potentially devastating.

Parents’ rightful autonomy to raise their children does not include the right to subject them to these interventions.

Parents’ religious beliefs are subordinate to children’s rights to be free from harmful medical decisions. Just as parents’ religious beliefs do not justify refusing medical care needed to save a child’s life (e.g., medications, blood transfusions), those religious beliefs also do not justify forcing children to undergo ineffective treatments that may harm them.

Finally, without naming it, Anderson complains of “a movement that claims to strive for freedom.” Perhaps the movement to which he alludes is the movement of the majority away from discrimination and toward equality for all, regardless of sex, gender or sexual orientation.

No one movement protects the rights of all people. Rather, protecting the rights of others, especially the most vulnerable among us, is the most fundamental right guaranteed by the Constitution.

I write this in my own capacity and am not representing the views of my employer.

James McGrath is a professor of law at the Texas A&M University School of Law in Fort Worth. jmcgrath@tamu.edu

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