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Supreme Court of the United States

7 Questions with Ryan T. Anderson on the Misguided “Fairness for All” Proposal

By Charles Snow posted on:
June 20, 2019

Ryan T. Anderson is the William E. Simon senior research fellow at The Heritage Foundation, where he researches and writes about marriage, bioethics, religious liberty, and political philosophy.

He is the author of several books, including When Harry Became Sally: Responding to the Transgender Moment and Truth Overruled: The Future of Marriage and Religious Freedom.

He has also written extensively about SOGI laws, which add “sexual orientation” and “gender identity” to non-discrimination laws, including the controversial Equality Act and “Fairness for All” proposal. Both would impose SOGI obligations on most of the nation’s businesses, employers, and schools while simultaneously diminishing or even eliminating statutory protections for religious non-profit organizations.

Anderson spoke with Faith & Justice about the potential effects of Fairness for All, which supporters claim would balance the concerns of the LGBT community and the religious community — and why the proposal cannot achieve that balance. This is an expanded version of that interview.


F&J: You've said that sexual orientation/gender identity (SOGI) laws, including Fairness for All, are not about freedom - but coercion. Can you explain?


RTA: In the United States, people who identify as LGBT already are free to live how they want to live. There are no laws preventing them from living how they want to live.

These proposed SOGI laws aren’t about creating spheres of freedom for people who identify as LGBT to live. They’re about having other people behave and act in ways, and run their schools, charities, and businesses in ways, that accord with LGBT beliefs.

These laws are about making Jack Phillips bake a same-sex wedding cake. They’re about making Catholic Charities adoption agencies place children in homes with two moms or two dads. They’re about making physicians perform, hospitals offer, and healthcare plans pay for sex reassignment procedures. They’re about redoing [school] policies to allow boys who identify as girls into the girls’ bathrooms, locker rooms, and sports teams.

It’s not about freedom. It’s about imposing a new ideology on everyone else.


F&J: What are the limitations of the Fairness for All Proposal?


RTA: It depends upon what it looks like. So far, there is no publicly available version of this. All we have seen are various drafts at various stages of the process. It still has not been introduced.

But from what we can tell, its supporters are asking, “How can we protect both LGBT rights and religious liberty?” They propose making sexual orientation and gender identity protected classes under existing antidiscrimination laws in exchange for limited exemptions for religious non-profits – religious liberty protections that the Constitution already provides.

To my mind, this is fundamentally misguided. It makes it seem like the only reason we should have concern with sexual orientation and gender identity laws are religious liberty reasons.

But limited religious liberty protections don’t do anything to address the core problems with SOGI laws.

  1. They ignore privacy concerns, when men who identify as women get to enter women-only spaces.
  2. They ignore safety concerns, when predators who can pretend to identify as women can access those same spaces and prey on women.
  3. They ignore concerns about equal opportunity for women, when boys who identify as girls get to compete against girls in athletic competitions or when men who identify as women get to compete against women in athletic competitions.
  4. They ignore liberty concerns for people who are not religious but have conscientious or medical convictions against sex-reassignment procedures. So, if you are a woman who doesn’t want men in your locker room or a secular doctor who understands this is bad medicine, a religious-liberty protection does nothing for you.
  5. They ignore all ideology concerns, like what will be taught at public schools and what will be mandated through various speech codes for hostile workplace laws.

Religious liberty isn’t the only, or even the primary, concern of those five areas. These are different understandings of the human person and of human nature. Framing it as just a conflict between religious liberty and what they are calling “LGBT rights” fundamentally gets it wrong.


F&J: You mentioned religious exemptions. What types of exemptions would there be?


RTA: Most likely for faith-based hospitals, faith-based schools, and, in certain contexts, faith-based charities. And possibly, very small businesses. The devil will be in the details.


F&J: Leaders of a few Christian organizations have expressed support Fairness for All, believing this is the right thing to do. Why are they mistaken? Or, put another way: What makes this bill so attractive to so many? And why is it so dangerous?


RTA: For some, it seems like their thought is that this is simply the best political compromise or policy proposal they could hope for. But what is the actual role of the Christian leader? Is it to be cutting public policy bargains? Or is it to be bearing witness to the truth, and evangelizing? Insofar as these Christian leaders are focused on finding a public policy compromise, are they actually undermining their own ability to teach the truth, to evangelize the truth, to promote the truth?

For others, it’s a misguided approach of doing the right thing. Some people genuinely think there are problems in the United States with anti-gay or anti-trans bigotry. But the way in which they are combatting those problems is misguided. An adequate public policy response to those problems would be much more targeted and much more nuanced. It wouldn’t require religious exemptions. If you need an exemption from the law in this context, then you have a passed a law that in one way or another is penalizing people who hold to the truth and seek to live out the truth. That’s very misguided.


F&J: What would real "fairness" look like?


RTA: Fairness here would protect the common good. One thing that I have found remarkable in the discussion of “Fairness for All” is that it has only been framed as religious liberty on one side and “LGBT rights” on the other. It hasn’t been framed as what’s public policy for the common good. It’s been framed as two competing special interest groups who are trying to come up with public policy that would protect their vested interests. But this is not how Christians should engage in the political process. We should be thinking about what will actually be fair to all of our neighbors.

If we are imposing a bad law on our neighbor that we are then trying to exempt ourselves from, that’s a sign that we haven’t enacted policy that’s fair for all.

We really need to ask what will be fair when it comes to privacy, safety, liberty, equal opportunity, and ideology. What will be good on all those issues? Goodness can’t be detached from truth. What’s the truth about human nature and the human person? What’s the truth about why we have separate facilities for boys and girls, for men and women? We have to go back to foundational anthropological realities. If we want public policy to be for the common good and truly be fair for all, it should reflect those realities.


F&J: What can everyday Americans do to help turn this around?


RTA: First, we all need to bear witness to the truth about the human person, the human body, human sexuality, marriage, and the family. And to bear witness in ways that can be accessible to people who do not share all of our presuppositions.

Second, we must express publicly that adding the phrase “sexual orientation and gender identity” to existing nondiscrimination law is a non-starter. The starting point should be through a more tailored, nuanced approach.

Citizens must communicate this to their representatives, leaders of their universities, the places where their kids currently study, their pastors, or even organizations they financially support.


F&J: What do you appreciate about ADF's role in this struggle, and in the broader effort to defend civil rights and religious freedom in America today?


RTA: ADF has been the best at defending freedom for all without throwing overboard an understanding of what the truth is. ADF says, “We should be free to disagree about these issues, but we are not going to be relativists. We agree that what Jack Phillips believes about marriage is true, and he should have the freedom to live out the truth.”

ADF has been willing to do that in the courtroom, in public policy discussions taking place in state houses and city councils, as well as in the halls of Congress. ADF explains what is wrong with these coercive sexual orientation and gender identity laws, and what it would look like to better respect freedom for all.



Charles Snow

Charles Snow

Contributing Writer

Charles is a Tennessee native and lover of books and basketball.

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