There are many good reasons to oppose “adding the words” to Idaho’s human rights amendment. Not the least among these reasons is that discrimination is part of human life and the free market deals with discrimination in the least socially disruptive way. We discriminate when we shop at Albertson’s rather than Fred Meyer, when we rent to the married couple with steady jobs instead of the cohabiting couple on unemployment, or when we choose to attend the Shakespeare festival instead of the movies.
Discrimination also has a price: If consumers or employers limit the range of their choices, the seller that they are choosing has greater power over them and can exact a greater price. If a renter will not rent to unmarried couples, for instance, it will be harder to rent out the apartment and he may lose money. If an employer did not want to hire women, he would be drawing from a smaller hiring pool and the job candidate would have greater power in negotiations.
One of the best ways of working out society’s different views on things is to allow people to live in freedom, to make choices, and then to live with them.
Lost in the debate about “adding the words” here in Idaho is the meaning of those words. Let us focus on “gender identity,” because it is the tip of a large, large iceberg. Sex is based in biology and there are two sexes. Gender is our sense of one’s identity apart from our bodies: sometimes it is thought to be imposed by the culture (as in when people play the role of mother), but today gender advocates would be empowered to make gender the product of human choice.
If the definition of gender seems abstract, it is. Essentially gender, according to its advocates, is something that human beings choose for themselves. An extreme example illustrates the point well. Gender advocates sometimes see the need for sex change operations. Why? It is necessary to bring the body (which they have not chosen) into line with their “gender identity” (which they have chosen).
As legislators consider “adding the words,” they might consider that the law would put this definition of what it means to be human into the law—and it would punish those who think that there is some relationship between one’s body and one’s “gender.” In the beginning of this movement there were two genders and we aspired for “gender neutrality.” Then later there were seven or so genders and we were told to affirm each person’s “gender.” Now gender is a sliding scale or continuum where a person finds himself or herself (or itself) at any moment—there are, depending on who you listen to 23 genders (Facebook) or even more.
“Adding the words” would make discrimination based on this fluid concept illegal in Idaho. Think about how hard it would be to operate for fear of violating the idea of “discrimination based a fluid concept.” For all the problems involved in identifying racial discrimination or sex discrimination, at lease race and sex are actual concepts with meaning that a person can identify and act on. Avoiding discrimination on the basis of a fluid concept is especially a problem for those who think, reasonably, that one’s sense of oneself is grounded in one’s sex. Our language is structured around the idea that our bodies ground our identity; so are our restrooms and our high school sports and our classrooms and our health plans and most of our relationships. The recent cases of Smith College and Wellesley College, progressive women’s colleges both, who turned down transgender students, illustrate this point nicely.
Adding the words means denying a basic reality of human life, and that cannot but, in the medium run, make life in our litigious, very “progressive” society more difficult and less predictable. Better to embrace freedom—even at Smith and Wellesley—and allow people to express their visions of life in their lives. The law around “gender identity” will always be unsettled because the concept itself is supposed to be unsettled.
The law is not just something to make us feel good or to express empathy. It is supposed to provide the regularity and predictability that allows us to live together despite our differences. Adding the words will make that harder.
Scott Yenor is a political science professor at Boise State University. He is also a member of the Idaho Freedom Foundation's Board of Scholars. He earned his Ph.D. from Loyola University, Chicago (2000) and his B.A. from University of Wisconsin-Eau Claire (1993).
add the words