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In Fayetteville, the rights of the minority will be subject to the whims of the majority after all: The petition to put to a popular vote an ordinance that protects the civil rights of gay and transgender people has achieved enough signatures to go to referendum. Let's take a balanced look at three of the opposition's main arguments against the ordinance.
The most common, emotionally appealing argument is reminiscent of a limerick: "There once was a transsexual pedophile from Nantucket ..." that concludes with an unverifiable anecdote (read "lie") that the perpetrator's transsexuality functioned as a talisman to ward off prosecution for sexual misconduct. A less obviously ridiculous version of this line of argument suggests that sexual predators, who are universally cast as male, will be able to use this law as a cover to masquerade as female. Cloaked by our collective naivete, these Buffalo Bills would be able to easily prey upon girls and women in public restrooms.
Despite the Sturm und Drang surrounding these allegedly shielded trans-rapists, studies show it's trans people who are much more likely than the general population to be the victims of sexual assault. There's no evidence of a trans person ever avoiding prosecution for sexual misconduct in a city with a similar anti-discrimination law. Irrespective of recognizing someone's trans status, critics of Fayetteville's ordinance have suggested that unisex bathrooms are correlated with an increase in sexual assault. Again, there's no evidence of a link. It's time proponents of this line of argument start backing up their claims with sourced facts and data if we're to take them seriously.
The second argument put forward by the opposition in Fayetteville is that Equal Employment Opportunity Commission (EEOC) complaints will skyrocket, and it will be impossible for business owners to fire a bad employee who belongs to a protected gender- or sexual-minority group. Critics would have us believe that the newly created rubber-stamper of Unmeritorious Discrimination Complaints will ensure that poor, small businesses have no recourse to fight a complaint. But that doesn't reflect reality: In 2013 only 3.6 percent of cases the EEOC handled and closed were found to have a clear-cut EEOC violation.
Opponents have also alleged that because discrimination based on socioeconomic background is prohibited by the ordinance, banks won't be able to base a loan decision on a person's credit history. Yet "socioeconomic background" doesn't refer to a person's FICO score and assets; it's about whether or not her parents were poor or came from the inner city. We can feign ignorance about how words are actually used so that we can imagine a dystopia where businesses can't use relevant factors to decide to employ or give a loan to someone. Or, we can look at the current reality, where businesses can safely hire and fire minorities, veterans and Scientologists without incident and the burden of proof required for a successful discrimination complaint (as evidenced by the EEOC's own statistics) is very high.
The last argument is the only one with merit. As written and admitted by the Fayetteville City Council, being found guilty of a violation under this statute would be a minor criminal offense. Generally, matters related to discrimination against protected classes are a matter of civil law, which emphasizes mediation and dispute resolution as opposed to the emphasis on punishment and retribution found in criminal law. The latter goals don't provide a good framework for fostering mutual understanding and achieving an end agreeable to both parties.
Good intentions are necessary but not sufficient for crafting good laws. Is this one flaw with the ordinance an intractable obstacle? I doubt it, since a violation would be akin to a regulatory offense and not even a misdemeanor. Not all criminal offenses are major and require jail time or hefty fines.
Giving gender and sexual identity protected status isn't about granting special privileges. It's about extending the same privileges the majority already enjoys: allowing minorities to be judged on their own merit and to be able to economically participate in society without fear of reprisal. These protections don't only work for homosexuals or transgender individuals — heterosexual and cisgendered people enjoy them as well. Perhaps opponents of Fayetteville's ordinance will deliver other, reality-based objections before the election, but I won't hold my breath.
Ebony Buckley is a resident of Fayetteville.
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