Concerned Women for America - CWA, Others Challenge ‘Sexual Orientation’ in Legal Brief

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CWA, Others Challenge ‘Sexual Orientation’ in Legal Brief 10/10/2001

CWA, Others Challenge ‘Sexual Orientation’ in Legal Brief
Activist terminology finds way into Louisville law
Unlike race, color, and religion, which have self-evident definitions, “sexual orientation” and “gender identity” require accompanying explanations.
By Robert H. Knight

A doctor, two pro-family attorneys, Concerned Women for America, and several other pro-family organizations are challenging the legality of the terms “sexual orientation” and “gender identity.”

In an amicus (friend of the court) brief filed in the case of J. Barrett Hyman, M.D. v. The City of Louisville, et al (downloading this document requires the free Adobe Acrobat Reader), Herbert W. Titus and William J. Olson argue that “sexual orientation” and “gender identity” are “unconstitutionally vague,” “inherently unintelligible and wholly subjective terms that promote arbitrary and discriminatory enforcement.” Anti-discrimination laws that contain the terms thus violate the Due Process Clause of the Fourteenth Amendment of the United States Constitution, they write.

Authors Titus and Olson told Culture and Family Report that they did not expect the case to be heard “for a few more months.” Titus, who is the former dean of the Regent University Law School, said the term “sexual orientation” began to appear in nondiscrimination laws in the “mid-’70s to early ’80s, when ‘sexual preference’ gave way to ‘sexual orientation.’”

In 1999, the city of Louisville, Kentucky, and Jefferson County, Kentucky, added “sexual orientation” and “gender identity” to their civil rights codes. Dr. J. Barrett Hyman, a Louisville gynecologist, sued in U.S. District Court, alleging that the new law violated his biblically based Christian beliefs. Hyman was represented by the American Center for Law and Justice. The court ruled against Hyman, who appealed to the Sixth Circuit of the U.S. Court of Appeals, where the case is pending.

The appeal brief Filed by Concerned Women for America, Public Advocate of the United States, Citizens United Foundation, Lincoln Institute for Research and Education, and Conservative Legal Defense and Education Fund outlines how the terms are defined in different ways in different jurisdictions.

The authors say the terms are so vague that they open the door for selective interpretation. Unlike race, color, religion, ancestry, national origin, place of birth, sex, and age, which have “self-evident” definitions, “sexual orientation” and “gender identity” require accompanying explanations.

According to the U.S. Supreme Court in Hill v. Colorado (2000), due process requires jurisdictions to define the essential elements of a civil offense using two independent standards: 1) the statute must “provide a person of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits”; and 2) the statute must not “authorize or even encourage arbitrary and discriminatory enforcement.”

The Louisville and county ordinances violate both, the brief contends. The authors note that the District Court relied on Black’s Law Dictionary for a definition of “sexual orientation” as “a person’s predisposition or inclination toward a particular type of sexual activity or behavior; heterosexuality, homosexuality, or bisexuality.” But the court ignored the first part of the definition, which, the brief says, “may include a person who is sexually oriented to virtually anything, including animals (bestiality), children (pedophilia), inanimate objects (fixation or fetish), or dead people (necrophilia), in that all such persons have a ‘predisposition or inclination toward a particular type of sexual activity or behavior.’”

For instance, the Massachusetts definition of “sexual orientation” specifically does not “include persons whose sexual orientation involves minor children as the sex object.”

This indicates that pedophilia is a “sexual orientation” that had to be addressed legally. Other “sexual orientation” ordinances are wide open for interpretation.

The brief notes that some jurisdictions require knowledge on the part of the violator. Berkeley, California, for example, requires proof of “discrimination based on actual knowledge of sexual orientation” and “discrimination based on supposition or assumption of sexual orientation.” The Louisville and Jefferson County ordinances do not have a requirement of knowledge of condition, so “the chief element of that offense could be a wholly subjective predisposition or inclination that may not even be reasonably apparent, much less known,” the brief states. This could result in an “arbitrary” or “discriminatory” enforcement.

Employers’ risks are compounded because the city’s Human Relations Commission is authorized to “issue affirmative action orders” to force compliance. In reality, this could mean that a small business could be sued for not hiring a transvestite even if the employer did not know that the applicant was a transvestite.

The term “gender identity” is even more problematic than “sexual orientation,” the brief indicates, because none of the cases cited by the District Court for definition of the term defined it legally, and the sole Supreme Court case cited did not even use the term “gender identity.”

“In other words, ‘gender identity’ is neither a term of common meaning nor a term of common usage, but a new term in search of a meaning and in search of a usage,” the brief says. Louisville’s law also says that “gender identity” is “to be determined ‘for reasons other than dress.’ Such a definition is a totally artificial construct, completely divorced from reality,” the brief states. For example, “‘Cross-dressing’ is the very hallmark of the transgendered culture.”

Finally, the brief notes that Kentucky has a sodomy law, and asks, “May persons who commit such crimes nonetheless bring complaints under the Louisville and Jefferson County ordinances?”