The Challenges That Remain After Marriage Equality

Here is a July 29, 2015 New York Time editorial, “The Challenges That Remain After Marriage Equality”.

My comments are in italics.  They are not intended to support or oppose the NYT’s goals.  Rather, they are intended to point out the NYT’s lack of critical thinking about tradeoffs that can hurt the people it is trying to help - and the rest of us, too.

The moral of the story is that you cannot trust the NYT proposals to accomplish what it intends.

It’s tempting to regard last month’s Supreme Court ruling legalizing same-sex marriage as the coda of the gay rights movement. The joyous celebrations it prompted around the nation had an air of finality for the broader effort set in motion decades ago by the trailblazers who demanded to be treated with dignity.

Yet the marriage equality victory should not be regarded as the final battle, or even a clear sign that lesbian, gay, bisexual and transgender Americans are on the cusp of enjoying full equality under the law. They are not.

Discrimination on the basis of gender identity and sexual orientation remains an everyday challenge in many parts of the country. Currently, 31 states lack comprehensive laws that protect gay and transgender Americans from being fired, evicted or denied lines of credit.

Last week, lawmakers in the House and the Senate introduced the Equality Act, a bill that would broaden legal protections by amending the Civil Rights Act of 1964, the Fair Housing Act and the Equal Credit Opportunity Act to explicitly cover sexual orientation and gender identity. It would not do away with the exemptions for religious organizations in the laws that would be amended.

While federal courts and the Equal Employment Opportunity Commission have found that gay and transgender workers are protected under federal law, the bill would offer an important layer of protection in the workplace and beyond. Many Americans still worry that being out to colleagues and bosses could jeopardize their job security or career advancement.

The law would protect transgender students who are waging humiliating battles against school systems that have allowed hysteria to dictate policies on the use of public restrooms. It would make it harder for landlords to turn down prospective tenants who are gender nonconforming. To those who live in the country’s large, liberal cities, these scenarios might seem like aberrations. In much of the country, though, they are an everyday reality for thousands of Americans.

The NYT would outlaw behavior that is imprecisely defined and that can be hard to identify with confidence.  Who knows exactly why someone is fired, fails to advance in their career at a particular rate, fails to be approved as a tenant, is denied a line of credit, etc.  Decisions like these reflect far more than transgender, gay, or the other distinguishing personal characteristics the NYT is addressing.

No doubt, the NYT’s proposal would make it risker for those exhibiting the behavior the NYT finds objectionable, hence would reduce it.  However, because of the unavoidable ambiguity about the reasons for decisions of this complexity, some lawful decisions will be declared unlawful.  This makes transactions with the law’s intended beneficiaries more risky for innocent parties, too.  The consequence will be that all vendors require a higher price to compensate for the higher risk.  At best, both the intended beneficiaries and the rest of us will pay more, in one form or another.

The Democratic lawmakers sponsoring the Equality Act realize the bill might have little chance of passing while both chambers of Congress are controlled by Republicans. (It was introduced with no Republican backers.) It is nonetheless a worthy piece of legislation that establishes what more is needed to ensure full equal rights.

Consider social security, which pays the same amount regardless of gender.  Since the expected lives of women exceed the expected lives of men at any age, women should have a higher social security payroll deduction than men.  But their deductions are the same.  This is unfair to men, because the value of their expected benefits is less than the value of women’s.  Is the NYT for correcting this gender inequality?

“I think American people have come to understand in a very deep and inspiring way who gay and transgender Americans are and why exclusion and discrimination is wrong,” said Evan Wolfson, the founder of Freedom to Marry, a group that played a central role in the struggle for same-sex marriage and is now disbanding.

Mr. Wolfson and other leading advocates acknowledge that capitalizing on the shift in public opinion to build enough support for a new federal law may take several years. Their strategy, like the approach taken for marriage, is to continue the fight for equality in courtrooms, state legislatures and corporate boardrooms to strengthen the uneven patchwork of state and local laws.

In some ways, the quest for civil rights protections under federal law is on a far more solid footing than the marriage equality movement was just a few years ago, when lawyers began looking for plaintiffs whose compelling stories could bring the issue to the Supreme Court. The shift on that question has been swift since 2011, when a slim majority of Americans began supporting same-sex marriage.

Today, a broad majority of Americans support protecting gay and transgender workers from employment discrimination. Nearly two-thirds of likely Republican voters and 90 percent of Democrats recently told pollsters that they support such protection. There is every reason, moral and political, to be on the right side of this issue.