…And they remind Utah’s legislators that their actions may affect the rest of the nation in redefining the standard for protected classes.
The key issue for Utah’s legislators in deciding which way to vote on SB 296 hangs on the constitutional question of “strict scrutiny.”
Although the Southern Baptist Convention has found ways in the past to work together with other faiths that hold divergent doctrines, its president, Russell Moore, has declared they will part ways from Utah’s proposal on LGBT rights.
He has provided an excellent analysis of SB 296 – Nondiscrimination and Religious Freedom Amendments in a blog post and has concluded that the bill falls short of what should be mutual goals of religious institutions to strengthen their First Amendment rights amid challenges from the LGBT community.
The Southern Baptist Convention sees what we and many others also see: SB 296 protects religious institutions and affiliates, but it does NOT protect the private citizens – the Dan Cathy’s of Chick Fil-A or the Green’s of Hobby Lobby.
Tony Perkins and Peter Sprigg of Family Research Council also see what we see and have published an article about Utah’s bill.
The religious discrimination that florists, photographers, bakers and t-shirt makers have faced from the LGBT activists that have caused them to either shut down their businesses or to pay fines will be left as unfair game for the LGBT activists to use and abuse with this legislation.
Moore brings up a great point, one that is being silenced: Homosexuals are NOT born that way and homosexuality CAN be changed.
He says that homosexuality is not immutable (unchangeable). He is concerned that the Utah “national model” protects a group that does not rise to the “strict scrutiny” standard of the Court on a par with traditional protected classes that DO rise to that standard. This is currently a required Court standard in order to qualify for special classification.
If you didn’t know that, you probably are too young to have fought the Equal Rights Amendment as I did and we learned all about the Court definitions for civil rights.
I have watched as Utah Senators and Representatives have voiced their uneducated opinions in committee hearings and on floor debates. They repeated over and over the mantra, “They’re born that way.”
More than one said, “I didn’t used to believe this, and then I got to know a gay person. Now I see it differently and I know they aren’t born that way.”
Really? What was your source of information?
This debate has become far too emotional. It has lost all rational perspective. I am asking everyone to take a deep breath, step back from there emotion and begin listening to the voices of reason, of medical science and the scientific method.
If you are an elected official in Utah or anywhere, do not make the uneducated mistake of rising to this issue and saying you have compassion on a group of people that were born that way.
After several years of providing ample opportunities for elected officials to come out and get that education, sadly less than a handful have done so. We have held home gatherings, public gatherings, online webinars and video conferences – every possible way to reach our legislators. They have not cared enough to attend.
I was utterly stunned to listen to how many shared their compassion for those that are “born that way.” Who told them this? And what is the source of that medical science?
Simon LeVay conducted a brain study years ago, but he later recognized that too many ex-gays were choosing not to live that life style, and he acknowledged the limitations of his own research. The twin studies did not show any evidence. No genetic studies show there is anything inborn.
Some correlation exists between a woman who takes fertility drugs and male children born with a higher level of estrogen, producing more effeminate traits, which can be easily corrected.
The fact is: no reputable medical or social science exists to show homosexuals are “born that way.” But to hear the testimonies from the committees and the floor, in favor of an unproven sound bite, led me to believe that the LGBT lobbyists did one heck of a job influencing them since the last legislative session.
Here is a summary of the research compiled by Douglas A. Abbott PhD, July 2007:
Critique of Past Research
The genetic theory of homosexuality rests on a foundation of three seminal studies in the early 1990’s– which all have serious methodological, sampling, and interpretation problems. Simon LeVay (1991) dissected the brains of 19 gay men and supposedly 16 non-gay men and found, on average, a slighter smaller area of the hypothalamus (INAH-3) in the gay men. He then “suggests that sexual orientation has a biological substrate.” There were several major flaws with his research: (a) the sample was small, (b) the control group was inappropriate, (c) there is no evidence that the INAH-3 part of the brain had anything to do with sexual preference, (d) AIDS could have caused the brain differences, and (e) the study has never been replicated.
Michael Bailey and Richard Pillard (1991) concluded there must be a genetic cause to homosexuality because they found higher rates of homosexuality among identical than fraternal twins and even less concordance (similarity) among adopted siblings. These quantitative genetic studies have similar limitations. First, the samples may be biased because researchers usually recruit a volunteer sample from gay publications and organizations. Second, such studies require a large sample in order to make valid heritability estimates, and samples are usually small. Third, environmental factors are usually not studied so its effects are unaccounted for. Forth, there are obvious interpretation problems because only about half of identical twins reared in the same family have a gay brother. If genes determined homosexuality then both brothers should be gay. Fifth, other twin studies have not supported their claim of a strong genetic component to homosexuality (see Hershberger, 1997).
Here is a list of other resources.
Strict Scrutiny Trampled in Utah?
The key constitutional question Utah’s legislature must focus on now is to meet the Court’s standard of “strict scrutiny.”
Simply put, the Court holds a standard that must be met for class discrimination cases. Homosexual behavior is not immutable, or unchangeable. It is not politically powerless (they have voting rights, citizenship). And homosexuals certainly have made an amazing contribution to society in many fields. I am well aware of those contributions in the performing arts, as I owned an entertainment-related company in New York City and 50% of my staff I hired was gay.
By its very definition, homosexuality cannot therefore constitutionally be designated a special protected class. If Utah passes SB 296, it will see a rise in lawsuits to test and clarify the flaws that were not given enough time to fix.
Family Research Council has published an excellent policy paper on this constitutional topic in a brochure that explains the constitutional standard and shows medical science studies to show why the behavior should not be protected titled Homosexuality Is Not A Civil Right
The Constitutional Issue
Does your state legislator know what these equal protection definitions are? If he or she doesn’t, that representative is not qualified to cast a vote on such a bill. Here’s a more detailed crash course.
The Court sets different standards or tests for protections. It must be justified by a compelling governmental interest, although that has never been adequately defined how that is determined, but it generally refers to something necessary and crucial as opposed to merely preferred, such as national security, preserving life (pro-Life? hmmm – you can see how judges ignore what they wish) and not violating explicit constitutional protections.
The law or policy must be narrowly tailored to achieve that goal or interest. If it’s too broad or fails to address essential aspects of the compelling interest, then the rule is not considered narrowly tailored.
It must use the least restrictive means to achieve that interest, meaning there cannot be an easier way to arrive at the compelling government interest.
Suspect Classification and Strict Scrutiny
The Supreme Court has established standards for determining whether a statute or policy’s classification requires the use of strict scrutiny. In order to pass strict scrutiny, it must be a “suspect class.”
This means it must demonstrate the following three characteristics:
The class must have experienced a history of discrimination;
- It must be definable as a group based on “obvious, immutable, or distinguishing characteristics;”
- It must be a minority or “politically powerless;” and,
- Its characteristics must have little relationship to the government’s policy aims or the ability of the group’s members to contribute to society.
For example, the Court has consistently found that for the broadcasting field, classifications based on race, national origin, and alienage require strict scrutiny review to qualify in the category of affirmative-action programs.
LGBTQA+ etc. – The New Civil Rights?
The LGBT activists consistently compare their situation to the civil rights of slaves and African-American people. The reason African-Americans are so offended at this comparison is obvious. In no way does homosexuality meet this Court standard.
Enter the Rational Basis Review. This is the default standard for constitutional questions that are applied to Fifth and Fourteenth Amendments. Rational basis is being used in the LGBT cases in the appellate courts to determine whether the law is a legitimate government interest, and whether real or hypothetical.
Homosexuals are not a race. The Fourteenth Amendment rational basis review has been used in applications far beyond its original intent.
Homosexuality is NOT immutable, or unchangeable such as skin color, biological sex, etc. It is nearly impossible to distinguish a gay man from a straight man, in many instances. And many have admitted that they have chosen that lifestyle or have departed from it. It is NOT immutable.
Yes, those who identify as homosexual (some bi-sexual and an alphabet list that keeps growing) are a minority.
But to suggest that the LGBT community is politically powerless (cannot cast a vote or do not have citizenship) is ridiculous and unsubstantiated. Fundraising alone runs circles around the heterosexual community. The Human Rights Campaign is around $40 million a year. The Southern Law Poverty Center around $123 million annually, to name two fundraising organizations.
If Utah adds SOGI (sexual orientation and gender identity) language to its law, it is setting a precedent for others to follow, and it could potentially re-write the U.S. Supreme Court’s definition.
Practically speaking, if this happens, what other behavior will be next in line to include in the long list of protected classes?
Do Utah’s legislators have any idea how their action may impact constitutional law, for the worse?
Strict Scrutiny and Religious Liberty
About 60% of the time, religious liberty has met a strict scrutiny standard in the Courts. We are grateful that the religious community is beginning to “scrutinize” themselves the serious nature of the course Utah may be charting for the rest of the nation as this bill is being marketed as the national model, funded by liberal think tanks such as Brookings Institution and Williams Institute at UCLA.
Here is a list of experts that were not given time or a hearing to testify in Utah against this bill that will apparently be the model in their states and which they each have shared concerns.
If you are a member of the Utah State Legislature, or if you are a voter in Utah, please contact them now to share this message. Vote NO – SB 296
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The full text of Dr. McHugh’s Wall Street Journal article (emphasis, mine)
The government and media alliance advancing the transgender cause has gone into overdrive in recent weeks. On May 30, a U.S. Department of Health and Human Services review board ruled that Medicare can pay for the “reassignment” surgery sought by the transgendered—those who say that they don’t identify with their biological sex. Earlier last month Defense Secretary Chuck Hagel said that he was “open” to lifting a ban on transgender individuals serving in the military. Time magazine, seeing the trend, ran a cover story for its June 9 issue called “The Transgender Tipping Point: America’s next civil rights frontier.”
Yet policy makers and the media are doing no favors either to the public or the transgendered by treating their confusions as a right in need of defending rather than as a mental disorder that deserves understanding, treatment and prevention. This intensely felt sense of being transgendered constitutes a mental disorder in two respects. The first is that the idea of sex misalignment is simply mistaken—it does not correspond with physical reality. The second is that it can lead to grim psychological outcomes.
The transgendered suffer a disorder of “assumption” like those in other disorders familiar to psychiatrists. With the transgendered, the disordered assumption is that the individual differs from what seems given in nature—namely one’s maleness or femaleness. Other kinds of disordered assumptions are held by those who suffer from anorexia and bulimia nervosa, where the assumption that departs from physical reality is the belief by the dangerously thin that they are overweight.
With body dysmorphic disorder, an often socially crippling condition, the individual is consumed by the assumption “I’m ugly.” These disorders occur in subjects who have come to believe that some of their psycho-social conflicts or problems will be resolved if they can change the way that they appear to others. Such ideas work like ruling passions in their subjects’ minds and tend to be accompanied by a solipsistic argument.
For the transgendered, this argument holds that one’s feeling of “gender” is a conscious, subjective sense that, being in one’s mind, cannot be questioned by others. The individual often seeks not just society’s tolerance of this “personal truth” but affirmation of it. Here rests the support for “transgender equality,” the demands for government payment for medical and surgical treatments, and for access to all sex-based public roles and privileges.
With this argument, advocates for the transgendered have persuaded several states—including California, New Jersey and Massachusetts—to pass laws barring psychiatrists, even with parental permission, from striving to restore natural gender feelings to a transgender minor. That government can intrude into parents’ rights to seek help in guiding their children indicates how powerful these advocates have become.
How to respond? Psychiatrists obviously must challenge the solipsistic concept that what is in the mind cannot be questioned. Disorders of consciousness, after all, represent psychiatry’s domain; declaring them off-limits would eliminate the field. Many will recall how, in the 1990s, an accusation of parental sex abuse of children was deemed unquestionable by the solipsists of the “recovered memory” craze.
You won’t hear it from those championing transgender equality, but controlled and follow-up studies reveal fundamental problems with this movement. When children who reported transgender feelings were tracked without medical or surgical treatment at both Vanderbilt University and London’s Portman Clinic, 70%-80% of them spontaneously lost those feelings. Some 25% did have persisting feelings; what differentiates those individuals remains to be discerned.
We at Johns Hopkins University—which in the 1960s was the first American medical center to venture into “sex-reassignment surgery”—launched a study in the 1970s comparing the outcomes of transgendered people who had the surgery with the outcomes of those who did not. Most of the surgically treated patients described themselves as “satisfied” by the results, but their subsequent psycho-social adjustments were no better than those who didn’t have the surgery. And so at Hopkins we stopped doing sex-reassignment surgery, since producing a “satisfied” but still troubled patient seemed an inadequate reason for surgically amputating normal organs.
It now appears that our long-ago decision was a wise one. A 2011 study at the Karolinska Institute in Sweden produced the most illuminating results yet regarding the transgendered, evidence that should give advocates pause. The long-term study—up to 30 years—followed 324 people who had sex-reassignment surgery. The study revealed that beginning about 10 years after having the surgery, the transgendered began to experience increasing mental difficulties. Most shockingly, their suicide mortality rose almost 20-fold above the comparable nontransgender population. This disturbing result has as yet no explanation but probably reflects the growing sense of isolation reported by the aging transgendered after surgery. The high suicide rate certainly challenges the surgery prescription.
There are subgroups of the transgendered, and for none does “reassignment” seem apt. One group includes male prisoners like Pvt. Bradley Manning, the convicted national-security leaker who now wishes to be called Chelsea. Facing long sentences and the rigors of a men’s prison, they have an obvious motive for wanting to change their sex and hence their prison. Given that they committed their crimes as males, they should be punished as such; after serving their time, they will be free to reconsider their gender.
Another subgroup consists of young men and women susceptible to suggestion from “everything is normal” sex education, amplified by Internet chat groups. These are the transgender subjects most like anorexia nervosa patients: They become persuaded that seeking a drastic physical change will banish their psycho-social problems. “Diversity” counselors in their schools, rather like cult leaders, may encourage these young people to distance themselves from their families and offer advice on rebutting arguments against having transgender surgery. Treatments here must begin with removing the young person from the suggestive environment and offering a counter-message in family therapy.
Then there is the subgroup of very young, often prepubescent children who notice distinct sex roles in the culture and, exploring how they fit in, begin imitating the opposite sex. Misguided doctors at medical centers including Boston’s Children’s Hospital have begun trying to treat this behavior by administering puberty-delaying hormones to render later sex-change surgeries less onerous—even though the drugs stunt the children’s growth and risk causing sterility. Given that close to 80% of such children would abandon their confusion and grow naturally into adult life if untreated, these medical interventions come close to child abuse. A better way to help these children: with devoted parenting.
At the heart of the problem is confusion over the nature of the transgendered. “Sex change” is biologically impossible. People who undergo sex-reassignment surgery do not change from men to women or vice versa. Rather, they become feminized men or masculinized women. Claiming that this is civil-rights matter and encouraging surgical intervention is in reality to collaborate with and promote a mental disorder.
Dr. McHugh, former psychiatrist in chief at Johns Hopkins Hospital, is the author of “Try to Remember: Psychiatry’s Clash Over Meaning, Memory, and Mind” (Dana Press, 2008).