Houstonians voted overwhelmingly Tuesday to repeal a three-week-old law championed by Mayor Annise Parker, purporting to “secure non-discrimination protections for all hardworking Houstonians”. Houston is a highly diverse city in a very conservative state, and much was made of the diversity of the population in the chorus of sympathy and disbelief in the local media Wednesday morning. The local media can hardly make heads or tails of how a city that could easily elect and re-elect an openly gay mayor, could then “reverse course” and “vote for discrimination” as some have described it. While the advocates of the ordinance blame religious bigots and extreme conservatives for a deceiving campaign trying the ordinance to “men in women’s bathrooms”, Mayor Parker herself engaged in a deceptive campaign, conveying two egregious fallacies.
Fallacy #1. LGBT and other protected classes “lost” something as a result of this vote. In other words, classes of people were protected, and now they are sitting ducks without legal recourse in the event of discrimination.
Federal law protects employees of any organization with 15 or more employees against discrimination, so long as the employee is in one of eight enumerated ‘protected classes’. While sexual orientation and gender identity are not specifically listed as protected classes, the EEOC and Federal Court Appellate decisions have unambiguously reached consensus that issues of sexual orientation and gender identity fall under the category of “Sex”, which is an enumerated category of prohibited discrimination. The ordinance provided protections for other forms of discrimination as well, such as discrimination in housing. Thankfully, none of these protections are lost, because the Fair Housing Act has, and will continue to protect home buyers and renters if they are members of protected classes.
A sub-fallacy (if such a term exists) common to HERO advocates is that average ordinary citizens who are the victims of discrimination do not have the resources to hire a lawyer and file a lawsuit in federal court. Luckily for those concerned, victims of invidious discrimination have traditionally been those with minimal economic means, which is why the processes for filing discrimination claims have been relegated to administrative agencies (EEOC for employment, HUD for housing) at low cost, and at convenient locations within the community. Public Assistance is also available a taxpayer expense to cover the costs for those who have the need.
Discrimination is the act of treating someone differently based on membership in a certain identifiable group, or due to a certain characteristic.Texas is an employment at-will state (aka “right to work”), which means that employers do not need to have a reason to end an employment relationship. In fact, an employer may lawfully terminate an employee, for no reason at all. This applies to all employees unless those employees are covered under other laws. What HERO would have provided, was more of those ‘other laws’.
Practically speaking, it is very easy for an employer to terminate employees for no reason at all, unless those employees are members of protected classes. The burden to prove that the employer’s motive was discriminatory is not on the employee, it is the employer’s burden to prove they had a legitimate non-discriminatory purpose.
Fallacy #2. The ordinance was not about bathrooms. This logical heresy has been perpetuated by two common brands of subterfuge:
“The word ‘bathroom’ is not even in the ordinance!” This is true. Neither are the words “church” or “newspaper” found in the text of the first amendment to the US constitution, or the word “gun” in the second amendment. This argument is simple and lazy deceit. Where did the idea that transgender persons would be free to use the bathroom of their choice come from? Annise Parker and her supporters would have you believe it came from the den of snakes that is the right wing media and religious zealots. Surely, only hateful bigots could disagree with her.
Or could it be that the original version of the bill expressly addressed the issue of transgender access to restrooms of choice, and was only removed to due to political pushback? The truth is bathrooms always were a key issue (though probably not the sole aim) even in the drafters minds. They simply realized they could not be open about this particular objective if they ever hoped to gain support for the ordinance. From that point forward they danced around the question of bathrooms with this next bit of elusiveness:
“It is already against the law to enter a bathroom for the purpose of causing a disturbance. HERO offers no protection for those who would commit crimes in restrooms.”
Well thank goodness for that. In logical fallacy world, this is a double-whammy. This argument is a red herring offered up to defeat a strawman. You see, opponents of this ordinance (63% of those who voted, likely a higher percentage who stayed home) were not concerned with disturbances in the women’s restroom. They were concerned with the mere presence of adult males in the women’s restroom. Call them old fashioned, traditional, or living in the past. The vast majority of Americans, for the time being, appreciate the substantive and meaningful differences between men and women, and would prefer to maintain a degree of separation in an intimate area where adults and young people alike disrobe as a matter of course.
No advocate of this ordinance would EVER state that the ordinance would not protect a transgender person from using the restroom of the sex they ‘identify’ with.
Mayor Parker sent chills up the legs of her supporters after the defeat of the bill with this platitude: “No one’s rights should be subject to popular vote.” Sounds legitimate. Noble even… The reality is that no one’s rights were in jeopardy. The vast majority of Americans do not have discrimination protections. Those in protected classes (originally aimed at the injustices of slavery and second-class status for women, somehow modernly expanded to include sexual orientation, as if the plight is comparable) are still protected by federal law.
The “Bathroom ordinance” was defeated by a mass disinformation campaign, they said. The truth is, disseminating information to the public explaining ballot language on state or municipal ordinances has always been a messaging game. Each side must boil the explanation down to one sentence or less ( a few words is better ) in order for the message to land with disinterested off-year election voters. Given the dishonesty of Parker’s own messaging highlighted above, can she really complain about the tactics used by the other side, merely because they were more effective than hers?
The people of Houston did not discriminate when they overwhelmingly elected Annise Parker to run the city THREE TIMES. It turns out, most people really don’t care about a candidate’s sexual orientation. They believed in Mayor Parker, and evaluated her credentials aside from the fact she was openly gay. They thought, “her sexual preference has absolutely nothing to do with the way she would run this city”. Nearing the end of her third successful term, has she proven them wrong?