This wording enshrines sexual attraction as a specially privileged class by elevating 'sexual orientation' discrimination "above religion, sex, and national origin discrimination," to be at "the same and, until now unique, level as race discrimination," which allows no bona fide occupational qualifications
In addition, the bill does not differentiate between same-sex attraction and same-sex conduct, protecting same-sex extramarital actions under the legislation's language.
The bill's emphasis on "gender identity" uses "force of law to a tendency to view 'gender' as nothing more than a social construct or psychosocial reality," divorced from physical sex, the bishops added, failing to properly protect privacy in areas of the workplace where it would be reasonable to have only members of the same sex, such as restrooms.
The proposed law may also be used to support the redefinition of marriage as a union between two persons of the same sex, they continued, "as a matter of federal constitutional right."
Finally, the bishops noted, the bill poses a threat to religious freedom and "could be used to punish as discrimination what many religions – including the Catholic religion – teach, particularly moral teaching about same-sex sexual conduct."
Anderson – who is currently serving as William E. Simon Fellow in Religion and a Free Society at The Heritage Foundation – argued that the legislation "would limit the ability of private employers to run their own businesses."
The use of both 'sexual orientation' and 'gender identity' to "describe behaviors as well as identities," he noted, limits an employer's ability to reasonably "consider the impact of behaviors at the workplace," such as the impact of a male dressing and acting as a female, or vice versa, in a school setting.
Some senators, such as Sen. Pat Toomey (R-Pa.) have tried to create middle ground between the two predominant opinions on the legislation. On Nov. 4, Toomey voted to bring the bill to a vote, while proposing an amendment to broaden the bill's religious freedom protections.
"I believe the Employment Non-Discrimination Act contains very important provisions," Toomey said in a Nov. 4 press release.
"However, I also believe it should be improved, especially as it pertains to religious organizations. We must strive to reach the appropriate balance between protecting workers and protecting religious freedom."
Toomey's proposed amendment is not yet included in the legislation, and his support for the bill when it is voted on may hinge on the adoption of such religious liberty protections. However, critics have argued that even with the religious liberty amendment, the bill would fail to address the other concerns surrounding the legislation.
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If the bill passes the Senate, it is expected to face stronger opposition in the Republican-led House.
Adelaide Mena was the DC Correspondent for Catholic News Agency until 2017 and is a 2012 graduate of Princeton University.