To: House Human Services
From: Christopher T. Dodson, Executive Director
Subject: House Bill 1441 - Discrimination on the Basis of Sexual Orientation
Date: February 11, 2019

The Catholic Church affirms the dignity of every human life and rejects unjust discrimination. Acts of violence, degradation, or diminishment toward any human person are contrary to the teachings of the church. There is no place for arbitrary discrimination or prejudice against a person because of the person’s sexual attraction.

This legislation, however, is not about how we feel about discrimination based on sexual orientation. It is not about whether a nondiscrimination policy is good for business. It is not about whether we should be like other states. It is not about how many people testify on one side or the other. It is about this bill.

This bill gives individuals a right to sue — and some would say harass — organizations and businesses based on a set of undefined or poorly defined phrases. This bill would create special protections for a certain class of activities and self-perceptions — not individuals as individuals. (1) Current law already protects lawful activities outside the place of employment.(2) Civil rights law should not become a vehicle to give elevated protection to sexual activities and self-perceptions.

Both supporters and opponents of this bill have noted the absence of “gender identity” in this bill. Its absence, however, might be overstated. Although Congress has never passed legislation to prohibit gender identity discrimination, the Equal Employment Opportunity Commission has ruled that the laws on “sex” discrimination apply to “gender identity.”(3) Courts and agencies from other states have ruled that “sexual orientation” necessarily includes “gender identity,” especially if the definition of “sexual orientation” includes — as it does in HB 1441 — “perceived” sexual orientation.(4)

This history tells us two things. First, we should not be deceived into thinking that HB 1441 will not be interpreted to include self-perceived “gender identity.” Second, it illustrates how this type of legislation is inherently messy and ripe for abuse.

House Bill 1441 is also replete with infringements upon conscience and religious liberty. Do not be fooled by the bill’s “religious exemptions.” The problems with the purported exemptions are numerous. Here are just a few: The first exemption applies only to employment matters when hiring employees and volunteers for religious positions. As such, it does not provide anything that does not already exist under Supreme Court decisions. The second purported exemption also applies only to employment matters, but would require the religious organization to restrict its employment to people of the same religion, effectively scaling-back protections that exist in the current law. The third exemption states that a religious organization can limit admission to places of worship and parochial schools to people of the same religion. This is a right we already have and it has nothing to do with the type of discrimination this bill purports to reach.

We realize this is an emotionally-charged issue. However, respect and cooperation, among people with legitimate differences of opinion is what makes North Dakota great. There is no place for hate, name-calling, or stereotyping by people on either side of this issue or this particular bill. Opposition to HB 1441 does not indicate hatred, prejudice, or even a lack of love and respect for anyone. It merely reflects a different understanding of law and this bill.

Keeping those principles in mind we urge this committee to carefully review what this bill actually does and give it a Do Not Pass recommendation.

(1) Here lies the fundamental error of any “sexual orientation” legislation. Unlike something like race or sex that does require overt behavior, the sexual orientation of an individual is not known unless the individual publicly expresses his or her sexual orientation with overt speech or actions.

(2) N.D.C.C. sec. 14-02.4-03. “It is a discriminatory practice for an employer to fail or refuse to hire an individual; to discharge an employee; or to accord adverse or unequal treatment to an individual or employee with respect to application, hiring, training, apprenticeship, tenure, promotion, upgrading, compensation, layoff, or a term, privilege, or condition of employment, because of . . . participation in lawful activity off the employer's premises during nonworking hours which is not in direct conflict with the essential business-related interests of the employer.”

(3) "Lakeland Eye Clinic will Pay $150,000 to Resolve Transgender / Sex Discrimination Lawsuit”
https://www.eeoc.gov/eeoc/newsroom/release/4-13-15.cfm; “EEOC inks first transgender discrimination settlement agreement” http://www.employmentlawdaily.com/index.php/news/eeoc-inks-first-transgender-discrimination-settlement-agreement/.

(4) This is actually the position of the American Civil Liberties Union, despite it opposition to HB 1441 because it does not include “gender identity.”
https://www.aclu.org/know-your-rights/transgender-people-and-law.