Senators and sex: The ENDA gender identity circus comes to Washington

Activists want a new civil rights movement based on sexual behavior, and stretching it into the workplace. Employers that don't go along get sued. Photo: Special to the Washington Times

WASHINGTON, October 29, 2013—The circus of gender identity has come to the nation’s capital; it will be playing in the U.S. Senate between now and Thanksgiving. The show is called ENDA and it promotes new sexual freedom in the workplace.

Activists across the country are proclaiming gender identity as the cutting edge of the new, sex-based civil rights movement, going even beyond same-sex marriage. An Obama appointee is quoted as saying sexual rights trump religious rights.


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Don’t expect fair coverage of this from the media. After Private Bradley Manning was convicted of espionage, he proclaimed himself to be Chelsea. Major media including the Associated Press showed their liberal colors by re-designating him as a her. Get ready for similar coverage and confusion over ENDA, the Employment Non-Discrimination Act.

Gender identity is the warped concept enshrined into California law in August when Governor Jerry Brown signed AB1266. Among other things, that law gives teen-age boys the right to shower with the girls in public school—no matter how loudly the girls object—if the guys say they think of themselves as female. The same boys can change their minds the next day, a concept known as being “gender fluid.” Repeal petitions of the law are being circulated in California.

The federal proposal focuses on the workplace, not schools, but features the same demand that everyone else must be subjugated to an individual’s sexual expression. Senate Majority Leader Harry Reid (D, Nevada) announced Monday that the Senate will divert time from lesser issues like budgets and Obamacare to consider ENDA, which will create the first-ever inclusion of gender identity into a federal statute. The proposed legislation (S. 815) has 54 sponsoring Senators, including two Republicans.

ENDA would turn voluntary sexual behavior into a protected civil right.


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Other civil rights laws protect constitutional rights like religion and race, plus natural-born conditions such as race, sex and national origin. ENDA would create new civil rights protecting “sexual orientation” and “gender identity.” (People can debate whether or not homosexuality is embedded in DNA, but ENDA makes no claim that sexual orientation is genetic.)

Most people know the term sexual orientation, but few appreciate the great range of meanings stuffed into the words “gender identity.” It’s a grab bag of behaviors that range from people undergoing sex-change operations, to drag queens, to those who like to cross-dress. ENDA declares that if anything related to sexual orientation or gender identity is “a” factor in an employment decision—no matter how tiny a factor—then the employer loses a nice big federal lawsuit.

How loose are the definitions? The legislation bill defines “gender identity” as “the gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual’s designated sex at birth.”

It’s open for plenty of interpretations, which are to be made by the EEOC—Equal Employment Opportunity Commission. They’re the same folks who forced Hooters to pay a multi-million dollar fine for not hiring male waitresses. The EEOC already takes the position that gender identity is covered under existing sexual discrimination laws. Even in advance of an ENDA vote, they’re pursuing enforcement actions.


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The EEOC’s champion of the gender identity movement is Obama appointee Chai Feldblum, who currently is up for re-confirmation. A lesbian Harvard law grad and Georgetown law professor, she has been quoted as saying that when sexual rights and religious rights come into conflict, then sexual rights must prevail. Considering that the First Amendment protects free exercise of religion, that’s an incredible and dangerous statement. Yet her re-nomination to the EEOC reportedly has not drawn major opposition in the Senate.

Based on the EEOC’s aggressive actions, one prominent law firm’s advice to clients is now typical: “Employers should stress that a transgender employee has the right to use the restroom that is consistent with the gender with which the individual identifies, and that co-workers must respect that right and behave accordingly. Requiring a transgender employee to use a separate restroom, or treating a transgender employee differently with respect to restroom use, may be grounds for a discrimination complaint. “

The potential passage of ENDA would generate workplace equivalents to match the schoolhouse case of 7-year-old Coy Mathis in Colorado. Born male, he says he thinks of himself as female, so his parents sued and a judge ordered his local schools to let him use the girls’ restroom.

The sexual freedom activists have been busy for years pushing this issue into our education system. Over 600 colleges and universities have quietly been persuaded already to include “gender identity” in their campus non-discrimination policies. These range from community colleges to major universities such as Arizona State, San Jose State, UCLA, Florida, Florida State, Northwestern, Purdue, Iowa State, Kansas State, Michigan, Michigan State, Mississippi State, Ohio State, Rutgers, Duke, Penn State, Tennessee, Texas, Rice, Utah, and a host of others. And of course the Ivy League.

Activists from the Lesbian, Gay, Bisexual, and Transexual groups are organized nationwide and lobbying Senators and House members already. Their message is that “This is the chance” for Republicans to show that they’ve “learned lessons” and will abandon their long-time conservative base on social issues.

All Democrat Senators are co-sponsors of S. 815 already, excepting Joe Manchin (D-W.Va.), Bill Nelson (D-Fla.) and Mark Pryor (D-Ark.). The two Republicans on the measure are Sens. Susan Collins (R-Maine) and Mark Kirk (R-Ill.).

Prime GOP targets being pressured to support ENDA on the Senate floor are Sens. Kelly Ayotte (R-N.H.), Jeff Flake (R-Ariz.), Dean Heller (R-Nev.), John McCain (R-Ariz.), Rob Portman (R-Ohio) and Pat Toomey (R-Pa.).

The political environment is such that the U.S. Chamber of Commerce is sitting out this fight.

Experience has shown that the activists who push for “gender identity” will keep pushing for more than mere tolerance. We’ve seen that in the same-sex and abortion causes. Soldiers and others are being pressured to disavow their personal religious beliefs, as are bakers and wedding photographers. Doctors, nurses and pharmacists are threatened with loss of professional licenses if they don’t assist in abortions.

The very notion of “gender identity” disregards biology. It’s not about biological sex, or genes or DNA. It elevates an individual’s behavior and their subjective state of mind over the rights and even the privacy of others. It’s a bottomless pit of controversy. The best way to deal with it is to avoid it.


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Ernest Istook

Ernest Istook spent 25 years in public office, including 14 years in Congress. He was rated one of the top 25 conservatives in the U.S. House of Representatives. Then was a Heritage Foundation fellow and a fellow at Harvard's Insitute of Politics, where he led a study group on Propaganda in American Politics Today. 

Now as a radio host and a commentator, Ernest aims to expose Washington's gimmicks--to help you avoid the pitfalls. He brings clarity out of the confusion. 

Native to Texas, Ernest transplanted to Oklahoma after graduating from Baylor University.

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