Dissenting U.S. civil rights commissioners to colleagues: 'Take a deep breath'

by Gregory Tomlin |

(REUTERS/Lucy Nicholson)A gender-neutral bathroom is seen at the University of California, Irvine in Irvine, California September 30, 2014. The University of California designated gender-neutral restrooms at its 10 campuses to accommodate transgender students, in a move that may be the first of its kind for a system of colleges in the United States. North Carolina has rejected similar moves.

WASHINGTON (Christian Examiner) – A week after the U.S. Civil Rights Commission condemned a spate of new state laws which offer religious liberty protections to those who do not wish to support same-sex marriage with their labors and also prohibit biological males from using women's restrooms (and vice versa), two commissioners have issued a scathing dissent to the group's statement.

In an 11-page statement emailed to Christian Examiner, Commissioners Gail Heriot and Peter Kirsanow – speaking apart from the Commission – rejected the idea that the laws "target members of the lesbian, gay, bisexual, and transgender (LGBT) community for discrimination" under the guise of "so-called religious liberty," as the Commission charged in its statement last week.

Please take a deep breath. ... We make this request in response to an overwrought statement that was adopted by majority vote on April 15, entitled, 'The U.S. Commission on Civil Rights Condemns Recent State Laws Targeting the Civil Rights of the LGBT Community.' That statement 'strongly condemns' state legislation recently adopted or being considered in Tennessee, Mississippi, and North Carolina as well as an executive action in Kansas. Unfortunately, it is not entirely clear that the statement's signatories have actually read the relevant legislation. We have.
- USCCR Commissioners Heriot and Kirsanow

Heriot, an Independent and professor of law at the University of San Diego, and Kirsanow, a Republican attorney from Ohio, called on the Commissioners who supported the statement to "please take a deep breath."

"We make this request in response to an overwrought statement that was adopted by majority vote on April 15, entitled, 'The U.S. Commission on Civil Rights Condemns Recent State Laws Targeting the Civil Rights of the LGBT Community.' That statement 'strongly condemns' state legislation recently adopted or being considered in Tennessee, Mississippi, and North Carolina as well as an executive action in Kansas. Unfortunately, it is not entirely clear that the statement's signatories have actually read the relevant legislation. We have," Heriot and Kirsanow wrote.

In particular, the dissenting commissioners took exception to the derisive language used to refer to those with religious beliefs who supported so-called "hate bills" and "anti-LGBT laws."

"None of them deserves to be referred to in the derisive terms used by the Commission majority," Heriot and Kirsanow wrote. "Those that deal with religious liberty issues are not merely using religion as a "guise" or "excuse" as the Commission majority alleges. All of them address real issues in reasonable ways; none is simply an attack on the LGBT community."

The dissenting commissioners then discussed and defended the recent laws enacted in Tennessee, Kansas, Mississippi and North Carolina.

Tennessee was criticized for passing a bill (HB 1840) which allows counselors and therapists to pass on taking patients who "goals, outcomes and behaviors" conflict with their sincerely-held religious beliefs or principles, but only after the therapist has found another therapist or counselor to treat the individual. State law already does not allow a therapist to turn away a patient who is considered to be in imminent danger of harming himself or others.

"That anyone would object to this is curious," Heriot and Kirsanow wrote. "Few individuals would want a counselor or therapist who objects to their lifestyle. Should a Muslim be required to counsel a gay man who seeks to persuade another gay man to marry him? Should a Roman Catholic be required to help the owner of an abortion clinic work through the day-to-day stresses connected with his business? Should a Jainist be forced to provide therapy for the owner of a slaughterhouse as he discusses how he sends animal after animal to its death?"

"Our colleagues allege that this law 'is part of an alarming trend to limit the civil rights of a class of people.' It seems just the opposite to us. This law decreases the likelihood that a gay individual in need of counseling or therapy will be saddled with a counselor or therapist who disapproves of him."

HB 1840 has not yet been signed by Tennessee Gov. Bill Haslam, who has suggested he may veto more bills this term. He has already vetoed a bill that would have made the Bible the official book of the state.

In Kansas, Gov. Sam Brownback is considering a change in state policy that will not allow people to request a change to the gender designation on the state's birth certificate unless the individual can attest to the fact that the gender was recorded incorrectly at birth. This has been attacked as anti-transgender by those who believe the document should be changed to reflect the gender with which the person feels they correspond.

"This is thought by the Commission majority to be antitransgender," Keriot and Kirsanow wrote. "But these are birth certificates, not life-style certificates. Kansas has the right to keep records that accurately reflect the facts of a birth. It's about truth. And truth cannot be pro- or anti-LGBT. It's just truth. As much as some individuals born as males may identify psychologically with females, as much as they may exercise their right to adopt female habits and dress, as much as they may undergo surgery and other physiological treatments in order to cause their physical bodies to better resemble females ... indeed as much as we might even support them in those endeavors, they are not in fact members of the female sex (or vice versa). When every cell in an individual's body contains chromosomes identifying that individual's sex, Kansas is not required to pretend otherwise in its official records, especially not retroactively to birth."

Kansas has the right to keep records that accurately reflect the facts of a birth. It's about truth. And truth cannot be pro- or anti-LGBT. It's just truth. As much as some individuals born as males may identify psychologically with females, as much as they may exercise their right to adopt female habits and dress, as much as they may undergo surgery and other physiological treatments in order to cause their physical bodies to better resemble females ... indeed as much as we might even support them in those endeavors, they are not in fact members of the female sex (or vice versa). When every cell in an individual's body contains chromosomes identifying that individual's sex, Kansas is not required to pretend otherwise in its official records, especially not retroactively to birth.
- USCCR Commissioners Heriot and Kirsanow

Both wrote other states could chose to do birth certificates however they wished, but "for our colleagues to suggest Kansas is acting unconstitutionally is Orwellian."

Mississippi's new law (HB 1523), signed into law by Gov. Phil Bryant April 5, also does not inflict discrimination on the LGBT community, the dissenting commissioners wrote. The law only indicates that wedding planners, photographers, bakers and other wedding services providers cannot be compelled to support with their labor a type of marriage with which they disagree.

"Note that the purpose of this legislation is not to deny same-sex couples the opportunity to celebrate their weddings. Such couples have many alternative sources for wedding services. The purpose is to avoid coercing unwilling individuals into participating in something they do not believe in," the dissenting commissioners wrote.

"There are many in this nation with sincere religious and moral objections to same-sex marriage. Denying that, as our colleagues do, is simply a way to pretend the issues that face us as a nation are easy. Toleration is all about leaving people alone to live their lives as they see fit; it is not about forcing people to take part in other people's lives. Whatever it is that our Commission colleagues are standing up for, it is not toleration," they wrote.

The last provision addressed by the dissenting commissioners, North Carolina's HB 2, prohibits biological males from using multi-occupancy female restrooms (and vice versa) and aligns local ordinances with state law on the matter of gender identity and public restrooms in government facilities.

North Carolina's Constitution, Heriot and Kirsanow wrote, does not allow local ordinances to supersede state law on labor and employment law, so when the Charlotte City Council created "open bathroom laws" in local businesses and city offices that conflicted with state law, Gov. Pat McCrory and the state legislature acted to avoid a "patchwork" of local ordinances.

Both commissioners wrote that they regret "the level of hysteria" associated with HB 2. Rockers Bruce Springsteen and Bryan Adams announced they would not play shows in the state after the passage of the law. Cirque du Soleil did as well.

Ironically, the circus will "continue to perform in parts of the world where homosexuality is illegal," Heriot and Kirsanow wrote.