Is the "Fairness for All" Legislation Truly Fair to All?

            The topic of discussion for this Constitution Monday is fairness for all. Many individuals and organizations are concerned about fairness and how to achieve it in our nation. A group of nine members of Congress, representing seven states, introduced the federal Fairness for All Act on December 6, 2019. 


            I agree that everyone should be treated fairly, and I admit that fairness is a difficult quality to achieve in the world in which we live. The Church of Jesus Christ of Latter-day Saints – led by fifteen men that I sustain as prophets, seers, and revelators – expressed support for the bill. The Church is joined in their support by the Seventh-day Adventist Church, the 1^st Amendment Partnership, the American Unity Fund, the Council for Christian Colleges & Universities and the Center for Public Justice. The full statement by the Church is as follows.

The Church of Jesus Christ of Latter-day Saints commends the introduction of federal legislation that seeks to preserve religious freedom and protect LGBT individuals from discrimination. We’re grateful for the leadership of Utah Representative Chris Stewart and other congressional supporters of this cause. The nation is more united when diverse individuals and groups can work cooperatively to advance sound policy. Alongside other religious organizations and denominations and important leaders of the LGBT community, the Church endorses this balanced approach that fosters greater fairness for all.

            The Church of Jesus Christ is concerned about all God’s children. Leaders and members of the Church believe that “No American should lose their home or job simply for being lesbian, gay, bisexual or transgender.” We also believe that “All religious persons should be free to live, work or serve their community in ways that are consistent with their faith.”


            I sincerely believe all that is written above, but I am concerned when I learn that a conservative constitutional scholar does not agree. Ryan T. Anderson wrote a scathing rebuttal to the Fairness for All Act. He stated that it is a good thing to find a legislative compromise, but the Fairness for All Act is not a good compromise. He worked for several years with “scholars and civic leaders promoting and drafting this legislation.” He reviewed the “69-page legislative draft” and rejected it.

Despite the undoubted good will of those who drafted and introduced the legislation, and despite some meaningful though insufficient protections for religious liberty, the bill is not in fact fair for all. Its protections for religious liberty come at the high cost of enshrining a misguided sexual and gender ideology into federal law. This will allow the federal government to use our civil rights laws as a sword to punish citizens who dissent from the reigning sexual orthodoxy. This is certain to create significant harm to the common good, especially for the privacy, safety, and equality of women and girls.

            Anderson stated that the Fairness for All compromise “was misframed from the beginning.” He said that Stewart recognized that the compromise is flawed. Even though the bill is meant to be “a balanced legislative solution for preserving religious freedom and protecting LGBT civil rights,” those are not “the only two values at stake in this legislative area.”


            If signed into law, the bill will amend the Civil Rights Act to include sexual orientation and gender identity. Anderson said that “elevating ‘sexual orientation and gender identity” to a protected class in the Civil Rights Act will cause serious harms.” He fears that the harms caused by this bill will come to “people’s privacy, safety, equality, and other forms of liberty – not just for religious people, but for anyone who disagrees with contemporary sexual and gender ideology.”

A bill that was truly fair for all would not allow the government to use civil rights law as a sword to punish citizens for disagreement on sexual ideology.

A bill that was truly fair would explicitly say that no institution could be forced by the government to allow boys who identify as girls to compete against girls in athletics; that no institution could be forced by the government to allow men who identify as women into women-only spaces, such as locker rooms and shelters; that no institution could be penalized because it lives out its creed that marriage unites a husband and wife.

A bill that was truly fair for all would explicitly say that no physician would have to engage in any “gender-affirming” care that they thought unethical, and that no child could be denied assistance to help them identify with their bodies.

            Anderson listed several other ways that he believes the bill is unfair. Then he noted the support given by The Church of Jesus Christ of Latter-day Saints. He agreed with the statement that “No American should lose their home or job simply for being lesbian, gay, bisexual or transgender.” Then he said, “But the Fairness for All legislation goes well beyond cases where people are fired or evicted simply for identifying as LGBT.” He continued with his explanation.

Fairness for All takes the existing Civil Rights Act of 1964, which was passed by Congress to, among other things, combat racism, and expands its reach while adding “sexual orientation and gender identity” as protected classes. The bill never defines what constitutes discrimination against such classes. So it takes a law meant to combat racism, broadens its reach, and fails to define a key term.

But properly defining unjust discrimination and targeting legislation at those actions is essential. Part of the problem with Fairness for All is that it leaves it entirely at the whim of hostile bureaucrats and judges to declare that commonsense actions may count as discrimination….

It is irresponsible to rewrite our civil rights laws to make “gender identity” a protected class when we can’t even define what gender identity is, or how many there are.

            Anderson continued by asking how it can be fair to “pass a law saying it’s illegal to discriminate on the basis of these gender identities without even defining what constitutes discrimination? This is legislative malpractice and will lead to endless, costly litigation.” He counseled that the nation should not “rush to conclusions” but “think critically and prudently.” He said that all Americans – no matter where they “fall on the political spectrum and whether they are religious, secular, or agnostic” – should be involved in the redefinition of marriage, sex, and gender.


            Clearly rejecting Fairness for All, Anderson said that the effort to develop good legislation should continue. He said that “A better approach would carefully consider the needs of people who identify as LGBT that requires a policy response, and then target legislation at those needs.”

Such legislation would specifically define what constitutes unlawful behavior, while explicitly protecting everyone’s freedom to engage in legitimate actions based on the conviction that we are created male and female, and that male and female are created for each other.

Such legislation must protect the privacy and safety of women and girls, the conscience rights of doctors and other medical professionals, parental rights, and the free speech and religious rights of countless professionals.

This would leave all Americans free to act on those convictions. It would also protect diversity and promote tolerance. It would promote true fairness for all.

            Anderson defended his rejection of the Fairness for All Act by showing that he has invested time and effort in his attempt to provide fairness for all. Even though the Fairness for All Act has been introduced and could pass quickly through the Democrat-majority House, we should hope and pray that it is destroyed in the Senate and fairer legislation introduced.