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Sexual Orientation and Gender Identity (SOGI) Laws Threaten Freedom

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All citizens should oppose unjust discrimination, but sexual orientation and gender identity (SOGI) laws are not the way to achieve that goal. SOGI laws are neither necessary nor cost-free. They threaten fundamental First Amendment rights. They create new, subjective protected classes that will expose citizens to unwarranted liability. Furthermore, SOGI laws would increase government interference in labor, housing, and commercial markets in ways that could harm the economy. Yet SOGI’s damage is not only economic: It would further weaken the marriage culture and the freedom of citizens and their associations to affirm their religious or moral convictions, such as that marriage is the union of one man and one woman and that maleness and femaleness are not arbitrary constructs but objective ways of being human. SOGI laws would treat expressing these widely held beliefs in certain contexts as unlawful discrimination.

Key Points

  1. Sexual orientation and gender identity (SOGI) laws pose serious problems for free markets and contracts, free speech and religious liberty, and the health of our culture and pluralism.
  2. SOGI laws threaten Americans with liability for alleged “discrimination” based on subjective identities, not objective traits.
  3. SOGI laws mandate bathroom and locker room policies that undermine common sense in the schoolhouse and the workplace. They expand state interference in labor, housing, and commerce.
  4. Sexual orientation and gender identity are radically different from race and should not be elevated to a protected class in the way that race is.
  5. Government should never penalize people for expressing or acting on their view that marriage is the union of husband and wife, that sexual relations are properly reserved for such a union, or that maleness and femaleness are objective biological realities.
  6. Market competition can provide nuanced solutions that are superior to coercive, one-size-fits-all government SOGI policy.

America is dedicated to protecting the freedoms guaranteed under the First Amendment to the Constitution, while respecting citizens’ equality before the law. None of these freedoms is absolute. Compelling governmental interests can at times trump fundamental civil liberties, but sexual orientation and gender identity (SOGI) laws do not pass this test. Rather, they trample First Amendment rights and unnecessarily impinge on citizens’ right to run their local schools, charities, and businesses in ways consistent with their values. SOGI laws do not protect equality before the law; instead, they grant special privileges that are enforceable against private actors.

SOGI laws could also have serious unintended consequences. These laws tend to be vague and overly broad, lacking clear definitions of what discrimination on the basis of “sexual orientation” and “gender identity” mean and what conduct can and cannot be penalized. These laws would impose ruinous liability on innocent citizens for alleged “discrimination” based on subjective and unverifiable identities, not on objective traits. SOGI laws would further increase government interference in markets, potentially discouraging economic growth and job creation. With regard to “gender identity” and “transgender” teachers, students, and employees, SOGI laws could require education and employment policies concerning schoolhouse, locker room, and workplace conditions that undermine common sense.

SOGI laws threaten the freedom of citizens, individually

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