Is LGBTQ Non-Discrimination Different?

In “More Than Just Bathrooms,” Inside Higher Ed has just reported on a new study by researchers at Clark University and the University of Massachusetts at Amherst of “more than 500 transgender and gender-nonconforming undergraduates and graduate students, as well as a handful of recent graduates” to determine what “policies and accommodations” are in place and how those students feel about them.

Gender neutral bathrooms were regarded as most important, but “next on the want list was a nondiscrimination policy that protected gender identity and expression,” although 65 percent of the respondents indicated their institutions had one.

The concepts of discrimination and non-discrimination have been hotly contested for more than a generation, and thus it is worth asking what LGBT students think those terms mean.  Since the lead author the new study, Aggie Goldberg, is a professor of psychology at Clark, its policy would seem a good place to start. 

“The University,” it promises, “will administer its personnel policies and conduct its employment practices in a manner, which treats each employee and applicant for employment on the basis of merit, experience, and other work-related criteria without regard to race, color, religion, sex, national origin, age, sexual orientation, disability, or any other protected class under relevant state and federal laws.”

Note well that Clark promises to treat “each employee and applicant … without regard” to race, sex, etc.

Clark, of course, is not unique in defining nondiscrimination as treating individuals “without regard” to their protected characteristics. In “Preferences, Principles, And Hypocrisy In Higher Education,” I discussed similar language at the University of Pennsylvania nearly fifteen years ago, and the hypocrisy has only spread since then. Moreover, pending legislation, the Student Non-Discrimination Act proposed by the Human Rights Campaign, takes the same approach. H.R. 5374 states:

No student shall, on the basis of actual or perceived sexual orientation or gender identity of such individual or of a person with whom the student associates or has associated, be excluded from participation in, or be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.

This language is modeled closely on Title VI of the 1964 Civil Rights Act. As I discussed recently here, however, Title VI has in some respects been a dead letter since 1978, when Justice Powell in Bakke said notwithstanding the “without regard” principle it embodied it meant nothing more, or less, than whatever the 14th Amendment’s “equal protection” means. That meaning, of course, has been stretched by the courts to allow all sorts of what might be termed “with regard” benefits and burdens to be based on race.

In fact, anyone today calling for “without regard” equal treatment, i.e., for colorblind equality, is likely to be called a racist.

Do those who support LGBTQ nondiscrimination policies and laws really believe that the Student Non-Discrimination Act they propose would prohibit “gender- and gender expression-conscious” admission and hiring policies, i.e., policies that would benefit some and burden others based on those characteristics? 

Based on the history of Title VI and the contempt today’s “civil rights” advocates have for the “without regard” principle, I doubt it.

Say What?