According to the Human Rights Campaign, the nation's leading gay rights group, eighty-eight percent of Fortune 500 companies have formal employment policies prohibiting discrimination on the basis of sexual orientation. And it's likely that almost all other businesses, like Senator Rick Santorum more than a decade ago, have a de facto policy prohibiting such discrimination. It's hard to imagine that in the year 2013 that any business in the country could fire someone simply because he is gay without facing a major backlash and boycotts.
So does the country now need a new federal law prohibiting such discrimination by private businesses? When Democrats controlled congressional supermajorities from 2009 to 2011, neither Nancy Pelosi nor Harry Reid held a vote on Employment Non-Discrimination Act (ENDA). But the Senate is taking up the bill this week, and the vote is being framed in the New York Times as a "test" for Republicans to show that they are not "out of touch with much of the country on social issues."
A vote for ENDA, however, is not without risk for its supporters. In addition to its gay rights provisions, ENDA creates transgender employment rights. Only 17 states passed laws like that. Furthermore, ENDA contains no exceptions for schools at any age level (though the law does contain a modest religious liberty provision).
As Ryan T. Anderson of the Heritage Foundation writes:
Issues of sex and gender identity are psychologically, morally, and politically fraught. But we all ought to agree that young children should be protected from having to sort through such questions before an age-appropriate introduction. ENDA, however, would prevent employers from protecting children from adult debates about sex and gender identity by barring employers from making certain decisions about transgendered employees.
ENDA's supporters acknowledge that the bill lacks an exception for elementary school teachers. "There is no reason to believe that a gay or transgender teacher will have a negative effect on the children they teach," according to a Human Rights Campaign's "MYTH vs. FACT" sheet. "The research shows that, in fact, younger children are the least concerned or confused."
There are no doubt communities in the United States where most parents agree with the Human Rights Campaign. But there are certainly other communities where parents would overwhelmingly object to subjecting their first-grade children to discussions about gender identity and sexuality.
The number of disputes arising from the passage of ENDA might be small (since the number of employment discrimination allegations is quite small). But if ENDA becomes law, it's inevitable that parents in some communities--at least the ones without the financial means to send their children to religious schools--will lose the right to choose what's best for their young children.