Sue Lani Madsen: We accept rational discrimination in other realms, why not in Bathroom Wars?
“Transsexualism” is specifically excluded as a protected class in the Americans With Disabilities Act of 1990, the last major civil rights statute debated at a national level.
Yet using civil rights as a shield, complex and rare cases of transsexualism have been interpreted by the judicial and executive branches into statutes written by the legislative branch to address simple binary gender discrimination. It’s a poor fit, a strong-arm attempt to change culture from the top down.
And it’s not helping. Such statutes haven’t increased empathy for those facing gender dysphoria.
Now, the Bathroom Wars ignore the physical constraints of existing buildings – and have pushed aside longstanding cultural norms. Proponents of change unsympathetically call anyone not on board ignorant and bigoted.
Gender is an obvious physical characteristic for 99 percent of the population. Whether an athlete’s DNA has XX chromosomes or an XY combination biologically drives a set of physical characteristics, regardless of an individual’s feelings about sexuality and culture.
We don’t question who competes in a women’s soccer tournament or men’s gymnastics competition. The Mariners aren’t going to hire me because I own a mitt. We accept discrimination in sports based on gender and skills.
Discernment is necessary to order lunch or vote in a political primary. We may legally express a prejudice against kale salads or a bias for liberal candidates. We exercise judgment and follow local cultural norms when we travel. Discrimination is essential.
Discrimination is only illegal when we use a long list of protected classes in federal and state statutes to make judgments about people.
Federal Equal Employment Opportunity Commission and Washington Human Rights Commission rules say we may not discriminate on the basis of race, creed, color, religion, families with children, sex, marital status, sexual orientation, national origin, disability, genetic information, HIV status, age, honorably discharged veteran or military status, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability, or for complaining about discrimination based on any of the above.
But we do discriminate based on many of the characteristics on this list. A bias for liberal candidates is discrimination on the basis of political creed. Families with children are not welcome in senior housing, which also discriminates based on age. Civil service gives preferences in hiring to veterans. Scholarships are often directed by their founders at applicants from a shared background. The exceptions are situationally dependent.
The Uber ride-sharing system takes the concept of discrimination a different direction. You rate your driver and the driver rates you as a passenger. Too many bad reviews for your misbehavior in the back seat, and you might find no Uber driver in the country wants to pick you up. You are subject to rational discrimination.
Employers rationally discriminate in hiring and firing. Education and skills are objective grounds for hiring. Performance and attitude are more subjective, but still rational grounds for discrimination. Showing up late or not at all, backstabbing fellow employees and lollygagging on company time will earn you a well-deserved “you’re fired.”
Business publications are clear on how critical work ethic is to success in any field and how hard it is to judge before hiring. Good news for farm kids competing for jobs, especially those who raise livestock. Your class has a reputation for responsibility, critical thinking, creative problem-solving and persistence that will move your resume to the top of the pile. Employers rationally discriminate on the basis of demonstrated work ethic.
Banning discrimination on an ever-lengthening list of protected categories is backfiring. Federal bullying to change culture without consideration for the cultural diversity of the country is driving us apart.
As long as we’re all stuck in the ladies room, let’s have a conversation on the rational grounds for discrimination. One nation with liberty, justice and empathy for all.
Sue Lani Madsen can be reached at rulingpen@ gmail.com or on Twitter: @SueLaniMadsen.