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Sexual orientation as a protected class


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Most governments in North America have created constitutions, laws, and regulations to protect their citizens against hate-crimes, discrimination, and oppression. They typically create protected classes of citizens based on such factors as race, sex, religion, skin color, degree of ability/disability, age, etc. Sometimes sexual orientation is included.

The two types of legislation that are usually involved are:

bullet Hate-crime legislation: They are activated only when a perpetrator is convicted of a criminal act. If it can be proven that they committed the murder, assault or other crime because of hatred towards all individuals who share the victim's race, sex, or religion, etc., then they are given an extended sentence.
bullet Human rights legislation: These laws criminalize discrimination against individuals because they are a member of a protected class. They usually create a government office with which individuals can file complaints.

Religious groups are often given special treatment by being exempt from human rights legislation and even some hate-crime laws. This enables them to discriminate freely against gays, lesbians, and women in the acceptance of members, eligibility for ordination, and appointment to other leadership positions. This guarantees the special right under law for Roman Catholics, Mormons, Muslims, conservative traditions in Judaism, etc. to refuse to consider any women for ordination, no matter what her talents, personality, knowledge, training, etc. It also guarantees the right of conservative Christian groups to refuse to consider homosexuals for ordination. These are special rights not generally extended to secular organizations and non-religious companies in some human rights legislation.

Public and governmental attitudes towards homosexuality have been in a state of flux:

bullet In colonial times, same-sex behavior was a capital crime considered at the time worthy of execution. It still is a capital offense in six countries of the world -- all predominately Muslim.
bullet Prior to 1960 homosexuality was widely considered to be a mental illness and/or a criminal act in spite of research by psychologist Evelyn Hooker in the early 1950s that proved the contrary.

Private same-sex behavior among adults was gradually decriminalized everywhere in the U.S. and Canada between 1961 and 2003.

bullet Over the past four decades, there has been considerable pressure from gay rights organizations, civil rights groups and some mainline and liberal religious denominations to add sexual orientation to existing hate-crime and human rights laws.

Change has been passionately resisted recently, mainly by social and religious conservatives. This conflict is based upon a deep division among adults in North America concerning their beliefs about homosexuality:

bullet Is homosexuality defined by one's behavior, or by one's sexual orientation?
bullet Is it normal and natural for a minority of humans, or intrinsically abnormal and unnatural?
bullet Is it caused by genes, or the environment, or both?
bullet Is it fixed, or changeable?
bullet Is it chosen by the individual, or is it something that they discover?
bullet Is it intrinsically immoral, or as morally neutral as is heterosexuality?
bullet etc.

These fundamental, conflicting, beliefs lead naturally to a decision on whether or not gays, lesbians and bisexuals should be considered as part of a minority class protected against hate-crimes and discrimination in employment, accommodation, etc. They also influence a person's attitude towasrds same-sex marriage, adoption, etc.

Many advertising campaigns have been launched to prevent sexual orientation from being added to federal, state, provincial, territorial and municipal legislation, regulations and by-laws. They frequently contain factual errors. Among the most common arguments are:

bullet Including sexual orientation as a protected class, grants "special rights" or privileges to gays, lesbians and bisexuals. This is factually incorrect because legislation protects every person without exception, whether they be heterosexual, homosexual, bisexual or, sometimes, asexual.
bullet Including sexual orientation will criminalize any religious speech that presents homosexuality as a sin. This is factually incorrect, because:
bullet In the U.S., speech attacking a minority group is protected by the First Amendment of the Constitution. Hate-crime legislation does not inhibit speech. It only is applicable if a violent crime has first been committed -- e.g. attempted murder, assault, aggravated assault, etc.
bullet In Canada, certain forms of hate speech are criminalized by provisions of the Criminal Code of Canada. But anyone delivering an anti-gay speech based on the famous six "clobber" passages in the Bible or similar passages from the holy texts of other religions is immune from prosecution. This immunity applies to clergy and to lay members of any religion. However, incitement to genocide against any group, including homosexuals and bisexuals, remains a crime in spite of efforts by some religious groups to decriminalize it.
bullet Including sexual orientation is a protected class is invalid because such classes must be reserved for innate, unchangeable, unchosen factors in a person's life, like race, skin color, sex, degree of permanent disability, etc. This is not a defensible argument because religion has traditionally been included in hate-crime and human rights legislation. One's faith identification is certainly changeable and chosen. Also, according to the vast majority of mental health therapists, human sexuality researchers, the Roman Catholic Church, liberal faith groups and some mainline faith groups, sexual orientation is neither changeable nor chosen.

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Copyright 2004 to 2009 by Ontario Consultants on Religious Tolerance
Latest update: 2009-JUN-28
Author: B.A. Robinson

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