SOGI Laws and a Free Society

 (Photo: Nick Oza, The Arizona Republic)

Recently, a federal judge in Fort Worth, Texas blocked enforcement of the letter of “guidance” sent by Obama’s Department of Justice and Department of Education. That is very good news.

This notorious letter, sent last May to schools across our nation and state, would have forced them to allow boys in the girl’s room and to share hotel rooms on trips or face federal punishment. Now we have a reprieve, at least for a while. 

By putting on hold the craziness which would have been unleashed in our own schools, this injunction will allow our children to be safe while attending school this year. It also shields them from being pawns in the culture wars. And it gives us all time to understand, reflect upon, and participate in the law making process as free citizens.

Let us use this time wisely. My hope is that we can be quit of the ever-present cat calls of “bigot” and “homophobe.” Such jamming does nothing to raise understanding or win hearts. It is fear-mongering at its worst. These issues deserve better. 

So, let’s begin by asking three basic questions. First, what laws are being proposed? Second, how are they being proposed? Third, what will happen if these laws are passed?

What is being proposed?

The central issue in the bathroom wars are so-called “SOGI” laws. “SOGI” stands for “Sexual Orientation and Gender Identity.” Two new legal categories – “sexual orientation, and gender identity” – are created and insert them into laws, ordinances, or policies about discrimination on the basis of “sex.” It changes current law in two major ways. 

First, it fundamentally alters the way that we understand the relationship of body and the person. Current law considers the physical realities of the human body (sexual organs, hormones, and DNA) as the focus of the law’s protection. To protect the body is to protect the person. But SOGI theory denies any real connection between body and person. It holds that only the mind (psyche) is the object of law. This explains why SOGI laws tend to sacrifice the bodily safety of girls and boys, affirming feelings instead.

As a direct result of this change, wherever SOGI laws take effect, First Amendment freedoms are rolled back. Laws have always restricted the way we use “sticks and stones” because they “may break my bones.” But we were careful not to restrict free speech. After all, “words will never hurt me.” But if my body is not really “me,” legal power must now restrict any words that might contradict my psyche. Religion, philosophy, psychology, biology, all must give way to the individual’s private ideas. 

How are they being pursued?

The Department of Justice and the Department of Education tried to reinterpret “sex” as “sexual orientation and gender identity” by merely issuing a memo, skipping the law-making process. By such executive fiat, or its twin sister, judicial fiat, much SOGI policy has already entered into public life.

But the constitution requires that laws be written by the legislative branch. Here, elected law-makers, in a process of give and take, carefully craft laws to balance all competing interests. In Wyoming, SOGI laws have been introduced into our legislature several times. Each time they have been voted down. Most recently was the contentious debate over SF 115 in February, 2015. This bill quietly passed the Senate by a large margin. But once the public weighed in, it was defeated in the House of Representatives. 

This year, Wyoming Equality, one of the main lobbyists for SOGI laws, turned from the state house to our towns and cities. They succeeded in getting Laramie to pass a SOGI ordinance. Since then, they have tried in Jackson, Cheyenne, and Casper but have stalled in the face of strong local opposition. Two sub-issues which contribute to local resistance are: 1) the lack of any religious exemptions – even for churches themselves; and 2) the criminalizing of free speech. 

Just as it is easier to pass a town ordinance than a state law, it is also easier to write SOGI language into the by-laws and rules of smaller agencies. The reason is simple. The fewer people involved in the process, the easier to slide it through.

This is exactly what Wyoming’s Commission on Judicial Conduct and Ethics has done. Even while SOGI legislation was being turned down by our state’s lawmakers, the Commission was introducing this language into its Rules of Conduct. By the way, it has also happened in a few county school boards (including Evanston). 

What will happen if SOGI laws are passed?

(Photo: Freedomworks.org)

People of good will can argue until the cows come home about what might or might not happen as a result of a certain law. But there can be no argument whatsoever as to what HAS happened wherever SOGI laws are in effect. Some may like the results, others may not. But we have enough evidence to know exactly what the results will be.

For over a decade now, we have watched other states, counties, and municipalities set up SOGI policies. Wherever this has happened, we have seen ordinary, law-abiding people have their lives turned upside down. Elane Photography in New Mexico, Arlene’s Flowers in Washington state, Masterpiece Cake Shop in Colorado, Hands On Originals in Kentucky, Aloha Bed and Breakfast in Hawaii, Sweet Cakes by Melissa, in Oregon, and the list could go on and on. 

All of these people were charged and fined. Most lost their businesses. Many were harassed mercilessly. Some lost houses or retirement savings. What holds all of these cases together is that they were each prosecuted under newly-minted SOGI laws. 

I am not, here, going to rehearse the details of each case. You should look them up for yourselves. I only point out that none of these would ever have happened unless their town, county, or state had first passed SOGI legislation. Whether you think their punishment was just or unjust, too much or not enough, is beside the point. The point is that SOGI laws provided the only possible conditions for the destruction of these businesses. 

While those cases happened elsewhere, Wyoming had not been bothered by anything similar – until now. Then, true to form, it was SOGI policy that brought it about. In 2009 the Wyoming Commission on Judicial Conduct and Ethics revised their Code of Judicial Conduct. Unbeknownst to most Wyomingites, they added the phrase, “sexual orientation” at key places. Few people thought at the time, that these revisions would play out the way they have. 

Least of all, Judge Ruth Neely of Pinedale. After 14 years on the bench and even being on the committee that rewrote the rules, she did not anticipate how these SOGI revisions would be used to bring her to the Supreme Court. But they did. Neither Wyoming state law, nor Constitution provides any justification for prosecuting Judge Neely. The entire case rests upon the newly minted SOGI language in the Code of Judicial Conduct.

So there you have it. SOGI laws work wherever they are tried. They make it possible to punish anybody who still dares to speak and act as if bodies matter. They make law based on theories, not established by science. They set up an unnecessary competition between one person’s internal psychology and another person’s free speech.

So the next time you hear of someone being dragged before a state equality commission, don’t just cluck your tongue and sadly say, “well, they did break the law.” Ask yourself who, exactly, passed this law? Was it some judicial, or executive fiat? Was it some obscure commission flying under the radar? Is it based in scientific reality, or in new psychological theories? Do I, personally, support this law? If not, I should be working to fix it in order to build a better community.

Laws do not simply exist. We make them. In a free society there is no saying, “well, I personally wouldn’t have fined them $135,000, but that’s the law.” No, that wasn’t the law until people like you and me wrote it that way. If you, personally, are troubled by some draconian punishment, then you, personally, are obligated to speak against it. 

That is “government of the people, by the people and for the people.”


For Further Reading:
Petition, Preserve Freedom, Reject Coercion
Focus on the Family, When Sexuality Trumps Religious Freedom
Breakpoint, Religious Freedom and SOGI Laws
Public Discourse, SOGI Laws
Christianity Today, Fairness for All