TESTIMONY OF

 

Attorney Mathew D. Staver

Founder and Chairman of Liberty Counsel

Dean and Professor of Law at Liberty University School of Law

Before House Education and Labor Subcommittee on

Health, Employment, Labor, and Pensions

September 13, 2007

 

 

            Mr. Chairman and members of the committee, my name is Mathew Staver.[1]  I am the Founder and Chairman of Liberty Counsel[2] and Dean and Professor of Law at Liberty University School of Law.[3] 

I would like to address the 2007 version of H.R. 2015, the Employment Non-Discrimination Act (“ENDA”), specifically, Section 6 entitled “Exemption for Religious Organizations,” and Section 8 entitled “Construction.”  Section 6 is a narrow exemption that leaves several employers subject to the provision of ENDA that should be exempted.  Section 8’s language of construction is troubling in that it would force acceptance and exposure to those in “gender transition” in the workforce, and it does not protect discrimination on the basis of marriage other than in the employee benefit realm.  Overall, these two sections raise significant Free Exercise and Free Speech concerns.

I.          SECTION 6 IS NOT A TRUE EXEMPTION FOR RELIGIOUS ORGANIZATIONS

            Under Sections 6(a) and (b), ENDA employs a “primary purpose” test for employers or “primary duties” test for employees to determine whether the exemption applies.  These terms will, of course, be judicially construed as they are not defined in the bill.  Under the plain language of the bill, only groups such as churches and religious orders will fit the exemption provision.  Most nonprofit, and certainly commercial, organizations will have a much harder argument that the primary purpose of the organization is “religious ritual or worship or the teaching or spreading of religious doctrine or belief.”  ENDA’s current exemption scheme, as drafted, lends itself to a strict construction, which would lead to a finding that such groups are not exempt from ENDA.  In addition to this, ENDA does not in any way exempt any Christian owned and Christian run businesses.  Those employers would still be subject to ENDA despite their sincerely held religious beliefs to the contrary.

II.        SECTION 8’S CONSTRUCTION PROVISION DAMAGES MORALITY, MARRIAGE AND THE FREE EXERCISE AND FREE SPEECH RIGHTS OF EMPLOYERS.

 

            A.        Employee Restrooms

 

            Sections 8(a)(3) and 8(a)(4) of ENDA contain provisions that are problematic from two perspectives.  First, the addition of those employees in “gender transition” or that have a “gender identity” creates problems for employers. ENDA deals with shared facilities for employees and mandates that employers give access to shared facilities, such as restrooms and other similar facilities for those who are of the same sex, but have an opposite gender identity (i.e. a male identifying as female), or of those who have notified their employer of an ongoing gender transition (i.e. a male transitioning to a female).  Those employees would be allowed to share restrooms and other similar facilities with members of the opposite sex.  The only exception to the shared facilities requirement is when the facility is such that “being seen fully unclothed is unavoidable.”  Facilities such as shared showers would not have to be shared if the shower is such that being seen fully unclothed is unavoidable.  However, shared shower facilities with stalls where being seen fully unclothed is avoidable would not be exempted from the requirement of allowing access to those facilities by opposite sex individuals who have a different “gender identity” or are undergoing “gender transition.” This section is problematic for employers who have a sincerely held religious belief of upholding morality in the workplace. Allowing individuals access to facilities of the opposite sex certainly implicates moral and religious beliefs.

            Additionally, this provision of ENDA requires the employer to acknowledge and recognize the concept that sex can be changed or that it is a fluid concept.  Those “identifying” as a different gender than what they were born as and those undergoing “gender transition” would have to be recognized by employers for the gender they claim to be or they claim to be transitioning to.  This forced recognition raises serious Free Exercise and Free Speech implications for religious employers who believe that sex is determined at birth and cannot be changed.  As Liberty Counsel has argued before, “A woman who had a hysterectomy and mastectomy is a woman.  A woman who thinks she is a man is a woman.  Therefore, a woman who has had a hysterectomy and mastectomy and thinks she is a man remains a woman.”[4]  Sex is not a fluid concept.  It is determined at birth and cannot be changed.  ENDA requires forced acceptance of a very radical notion that gender is merely a product of personal expression completely unrelated to a person’s biology of physiology.  ENDA represents the abolition of gender, which is the primary end goal of the same-sex agenda.

            ENDA’s provision of “dress and grooming standards” under Section 8(a)(4) also raises the same concerns as the shared facilities relative to the forced recognition by employers of the fact that sex is a fluid concept and can be changed.  Section 8(a)(4) requires that an employer allow an individual who has previously been through “gender transition” or has notified their employer that they are in “gender transition” to dress as the gender to which the employee has transitioned or is transitioning.  This section also forces employers to recognize that sex can be changed and thus raises serious Free Exercise and Free Speech concerns.

            The “dress and grooming standards” section also is very broad and would force employers to hire individuals that may be contrary to the employer’s image it wishes to portray.  For instance, airlines would be force to hire “gender transitioning” individuals as flight attendants or women’s clothing retailers would be force to hire men who believe they are women to sell their goods.⁵  An argument could be made that such individuals could not  perform their job duties, but ENDA’s acknowledgment that gender does not matter would prohibit this kind of argument.  If gender is irrelevant, then a “transition” from one sex to another would not prohibit someone from accomplishing their job duties.

            B.        Marriage and Employee Benefits

 

            These two sections of ENDA, when read together mean that, in states where same-sex couples are not allowed to marry, employers do not have to give benefits conditioned on marriage to same-sex couples, but that employers may not otherwise discriminate against same-sex couples because they are unmarried.  Put simply, an employer under ENDA can reserve marital employee benefits for opposite sex married couples.  However, an employer cannot take an employment action against a same-sex person because that person is unmarried.  It is difficult to imagine a scenario where an employer would not hire or would discharge an employee because they are unmarried because they are in a same-sex relationship.  Certainly religious employers would refuse to hire or discharge a person who is in a same-sex relationship.  To the extent that those employers are not wholly exempt or the employee is not exempted under Section 6 of ENDA, the employer could not discriminate on the basis of marriage if the person is in a same-sex relationship and is in a state that does not allow same sex marriage.

III.       DISCRIMINATION AGAINST PEOPLE OF FAITH

            Despite the overall problems with creating special rights for same sex individuals and those in “gender transition” or with a different “gender identity,” the two sections analyzed in this memo raise significant Free Exercise and Free Speech concerns.  ENDA’s provisions do nothing to address these concerns raised by the effect of ENDA on employers.  Moreover, ENDA would establish the controversial, and dangerous notion, that gender is merely based on personal expression and is unrelated to biology and physiology.  Finally, the exemption found in Section 6 only includes an organization which has its primary purpose religious ritual or worship or the teaching or spreading of religious doctrine or belief, leaving many nonprofit and commercial businesses at risk of not being covered under the umbrella of the exemption.  In effect, by not incorporating a true exemption, ENDA acts to further discrimination rather than eliminate it.