Superb write-up, as always, but, while it may be true that legislators may not include it *because* it is immutable, that doesn’t mean that such a characteristic is ruled out of consideration (or even critical).

For some things, it may be judged dispositive, for others, not.

Excellent explanation.

I would only add that for the most part protection from discrimination on the basis of religion is for the benefit of members of minority or unpopular religions (Jews, Mormons, Jehovah’s Witness, Wiccans, etc.). The Catholic Church is more than a little disingenuous to complain about religious discrimination when the Governor and a significant number of legislators voting for the bill are Catholic.

“What does immutability have to do with protected status? Religion is protected, and we all know it’s highly mutable.”

It has little to nothing to do with it. There are 2 bases for the protection of classes of persons. One is the constitutional (federal or state) and the other is statutory (federal or state). The constitutional protection comes out of the Equal Protection Clause. That clause prohibits the government from treating its citizens unequally. The courts set up a way of evaluating government actions to determine if they violate the clause. One factor they look at is whether the group challenging the governmental action is defined by an immutable characteristic. This only comes up in the context of a constitutional claim and immutability is only one of a series of factors that the court considers. This recently came up in the Prop 8 case, b/c Prop 8 was being challenged under the Equal Protection Clause.

In the statutory arena, the government is free to provide anti-discrimination protection to any group it wants, regardless of whether the group is defined by an immutable or mutable characteristic. Thus various states and cities have at some point extended protection to religion, disability, pregnancy, marital status, family status, military status, participation in recreational activities, and participation in conduct in furtherance of public policy.

The Christian Right knows that all of this is Greek to most Americans, half of whom couldn’t tell you the name of the Vice President. So they take a little bit of the constitutional discussion, distort it so that immutability becomes a dispositive factor, and then dishonestly apply it to argue against anti-discrimination laws such as ENDA. They also use these arguments when they are trying to enlist African Americans to their cause by suggesting that genuine civil rights can only legitimately apply in matters such as race or sex.

@ Priya:

As noted above, the Right’s argument is completely invalid. Religion is totally mutable and yet gets included in anti-discrimination laws. How does the Christian Right explain this?

Well, for a time, they simply ignored it inasmuch as no one was calling them on the carpet on their arguments. About 10 years ago, they felt the need to say something, and they essentially said that religion is mentioned explicitly in the Constitution (in the First Amendment) so therefore it must get anti-discrimination protection even though it is mutable. This is, of course, more nonsense. There is no anti-discrimination protection for gun owners (2d amendment), for people who refuse to quarter soldiers in their homes (3rd amendment), or for people who demand jury trials in civil actions (7th amendment).

Religion gets covered in civil rights laws simply because legislatures want it covered as a matter of good public policy, not because it is immutable, mutable, or because it is mentioned in some part of the Constitution. And that is precisely why they should include sexual orientation as well.

That ends class for today. There will be a quiz on Monday.

I haven’t read any of these studies. Do any have a proper control group? I ask because the one case I am personally familiar with, there was absolutely no “treatment” involved, per se. The person more or less did it on their own, I think (I really don’t know all of the details, but there was certainly no conversion therapy).

What that might indicate is that therapy is not quite the predictor or co-factor that even these meager statistics suggest. It’s sort of like the person, who is already buff, decides to go to the gym to get fit, then the gym claims their program gave him six-pack abs…

The US has some pretty strong protections. The Americans With Disabilities Act prohibits not only overt discrimination, but requires proactive accommodations.

A gentle revision:

14% success rate among a self-selected population, with no statistical confidence, and a definition of “success” that does not reflect any rational expectations of outcome.

14% success rate among a self-selected population, with no statistical confidence.

Please. That’s appallingly low, for any “treatment” statistic, no?

So, the question remains: is that sufficient rational basis to support setting up a counselling center of this kind?

Assuming that success rates are lower, perhaps by even an order of magnitude, for a regular, not-self-selected set, then the answer has to be no. Given the high rates of dis-utility of the treatment, the cost-benefit of treatment *as a group* would probably be rejected.

Success this low and nontrival hazard rates would probably have the treatment dubbed “experimental” or “radical”, in other circumstances. That is what would be disclosed, to parents and others, along with the potential harms.

Mutable, but still worth protecting. So, even if sexual orientation is mutable in some tiny subset of cases, it doesn’t mean that it’s not worthy of protection.

In addition to Priya Lynn’s comment, how do you reconcile your interpretation of the court’s role with protection of disabled people as a class? Clearly, not all disabilities are immutable (some may be remedied by newly developed treatments; others may be ameliorated by time), so by your logic, no disabled people can be protected as members of a minority.

(Incidentally, if disabled people are not legally protected from discrimination, the state of human rights in the US is even worse than I feared.)