Senate Bill 2

To view the full text of Senate Bill 2 click here (pdf or html)

Senate Bill 2

This legislation creates a new “protected class” of persons to be protected from discrimination, defines this new category, authorizes enforcement of its provisions through various state agencies and courts; adds other provisions regarding real estate transactions, religious institutions, schools; and prevents dress codes under most circumstances.

Definition of the new “protected class”

“’Sexual orientation’ means an individual’s actual or perceived heterosexuality, homosexuality, bisexuality or gender identity, regardless of whether the individual’s gender identity, appearance, expression or behavior differs from that traditionally associated with the individual’s sex at birth.” P.1:17-20

Analysis:

• This legislation renders moot all historical conceptions of what constitutes a male and a female. One’s actual morphological and hormonal equipment become only one among many ways an individual can be known. In fact, by law, we will only be permitted to know or identify another individual under terms they set, and those terms can change without notice.

• ‘Sexual orientation’ is defined as what one’s “actual” or “perceived” orientation is meaning that it can be either what is real, or what one perceives it to be.

• There is no provision that there must be any continuity to what this stated ‘perceived sexual orientation’ is; that is it may change as often as a person wishes or states it to.

• There is no challenge to what one’s ‘perceived sexual orientation’ is; that is a person on the outside is enjoined by this legislation from engaging in any discrimination or perceived discrimination even though the other individual may change his/her stated ‘sexual orientation’ as often as they wish.

Consequences:

• Genetics is to be no more important that ‘perception;’ so this legislation will require Oregonians to consider what another person imaginations themselves to be with the same seriousness as their physical reality; and in so doing attempts to overturn everything humanity has learned throughout our history, and the reality of what we see as well. Empirical observation is trumped by another person’s perception, and a violation can be considered ‘discrimination’ punishable by law. One’s own perceptions must be subjugated to the changing perceptions of all others, because your perception of what another individual is by empirical observation is trumped by the other’s person’s stated or unstated perception. (It will be interesting to observe how this new ‘reality’ will be taught in a science class where empiricism supposedly reigns.)

• A co-worker, for example, could ‘perceive’ him or herself as a member of the opposite sex, neither sex, or both sexes varying this identity daily or even hourly under the provisions of this legislation. An individual who has always identified himself as a male would now be free in all circumstances to express a ‘perceived gender identity’ associated with female “appearance, expression, or behavior; and this could change on a daily basis since there is no test. Supervisors and co-workers are enjoined by this legislation from engaging in any discrimination (defined later) as a consequence of these behavior and dress changes.

• A female (or male, although those terms have no legal standing under this legislation other than what an individual announces them to mean) could decide that they are identifying with the female gender in the morning, use the women’s restroom, and wear clothes historically associated with women’s wear; and in the afternoon perceive herself to be a male, use the men’s restroom and seal clothes historically associated with men’s wear. This behavior could - under almost every circumstance -not be challenged by a supervisor, nor could co-workers gossip or make the person feel un-included because that may constitute a hostile workplace.

• The law forbids discrimination against anyone for “sex,” “sexual orientation,” “heterosexuality,” “homosexuality,” “gender identity,” “appearance,” “expression,” and “behavior,” associated with the individual’s sex at birth. Under the law, then, a teacher with a beard and masculine-sounding voice may identify himself (although the term no longer will have any meaning) as a female with female appearance, expression and behavior. In addition, this person may change this perception monthly, weekly, or even daily, and school officials, students, and parents must not discuss the consequences of these changes with the individual, request them to discontinue, or develop an expressed attitude of distaste for the behavior without creating a hostile workplace, or engaging in discrimination.

• What will happen when a witness in court, under oath denies he is a man capable of rape because on that day, he perceives himself to be female? The Oregon legislature has rendered his male genitalia and previous heterosexual behavior as no more a reality than what he announces in court on this occasion. Will the court discriminate against this person by requiring him to answer truthfully, or will the truth be what the witness ‘perceives’ it to be rather than what is empirically known to be true?

“The purpose of this chapter is to encourage the fullest utilization of the available workforce by removing arbitrary standards of race, color, religion, sex, sexual orientation, national origin, marital status, age or disability as a barrier to employment of the inhabitants of this state and to ensure the human dignity of all people within this state and protect their health, safety and morals from the consequences of intergroup hostility, tensions and practices of discrimination of any kind based on race, color, religion, sex, sexual orientation, national origin marital status, age or disability.” P.1:29 – 2:6

Analysis:

• The stated purpose of this chapter is to encourage utilization of the available workforce by removing arbitrary standards of race… The reality is, however, that the stated purpose of the main legislation is to enforce acceptance of arbitrary standards. If someone genetically and morphologically a male ‘perceives’ himself to be a female, all Oregonians must accept this personal perception as a new reality. So every person in the state now has the right to create their own arbitrary standard that all others must accept with the same adherence with which they accept a real standard. The state legislature, by fiat, is stating that there are no standards with regard to sexual orientation or gender –by their definition, these are all arbitrary. So rather than eliminating arbitrary standards, they are creating them.

• It is important to note that among all the ‘protected classes,’ race, color, religious, sex, sexual orientation, national origin, marital status, age, and disability – only sexual orientation receives special consideration. Sexual orientation means what a person ‘perceives’ to be reality, and this reality can change with any frequency. One may not, announce their national origin or color to be what they alone perceive it to be with all others accepting it under penalty of law. One cannot perceive themselves to be married when they are not, or vice versa – only sexual orientation receives this special consideration.

Since this legislation has the above as its intention, the legislation goes on to say, “To accomplish this purpose, the Legislative Assembly intends by this chapter to provide: (1) A program of public education calculated to eliminate attitudes upon which practices of discrimination because of race, color, religion, sex, sexual orientation, national origin, marital status, age or disability are based.” P.2: 5-9

• The stated purpose of this section of the legislation is for the state to engage in a program of education forcing all Oregonians to change their attitudes regarding other people. As I understand, this should be the province of family or religion. The state will undertake to spend taxpayer money and use it for the purpose of overturning your personal family, ethnic, or religious beliefs. The legislation intends not to end discrimination against each of these various groups, but it intends to change your beliefs! It now becomes a violation of state policy to hold an opinion antithetical to that which the state demands you hold. Regardless of one’s personal experience in the workplace, and one’s personal effort to be treated with respect, it does not seem like any Oregonian should support legislation which has as its intention the alteration of a personal belief. Are we not free to believe what we want? Is it not permitted to believe in human sacrifice so long as one does not engage in it? Is it not permitted to believe that public nudity is a superior way of living so long as one does not engage in it? Is it not permitted to believe in the anarchic principle so long as one does not actively dismantle government in violation of the Oregon Constitution? (“Section 3. Freedom of religious opinion. No law shall in any case whatever control the free exercise, and enjoyment of religeous [sic] opinions, or interfere with the rights of conscience.”) Discrimination can be a good thing (a discriminating palate) or a bad thing (denying opportunity on the basis of race) but when the state begins to require its citizens to hold specific attitudes that may conflict with their religious beliefs we should all begin to fear. Oppression by the state of Oregon through the use of state agencies and funding to force a certain attitude upon any group becomes a tyranny.

• The indoctrination in attitude changing will be required in all schools both public and private, and will probably eventually lead to forced compliance in order to matriculate. It could also lead to requirements by the state for employers to conduct classes to force the beliefs the legislature wants you to hold. Think of the consequences if we have another legislature with a different agenda requiring other kinds of beliefs with which you do not agree.

Further consequences for religious institutions:

“The opportunity to obtain employment or housing or to use and enjoy places of public accommodation without discrimination because of race, color, religious, sex, sexual orientation, national origin, marital status, age or disability herby is recognized as and declared to be a civil right.” P.2:24-27

“Nothing in this chapter prohibits a bona fide church or sectarian religious institution, including but not limited to a school, hospital or church camp, from preferring an employee or applicant for employment of our religious sect or persuasion over another when:

(a) That religious sect or persuasion to which the employee or applicant belongs is the same as that of the church or institution;

(b) In the opinion of the church or institution, such a preference will best serve the purposes of the church or institution; and

(c) The employment involved is closely connected with or related to the primary purposes of the church or institution and is not connected with a commercial or business activity that has no necessary relationship to the church or institution, or to its primary purposes.” P.2:27-38

(4) “Nothing in this chapter prohibits a bona fide church or sectarian religious institution from taking any action with respect to employment, housing or the use of facilities based on a bona fide religious belief about sexual orientation.” P.2:39-41

“Subsection (4) of this section applies only if the employment, housing or the use of facilities is closely connected with or related to the primary purposes of the church or institution and is not connected with a commercial or business activity that has no necessary relationship to the church or institution, or to its primary purposes.” P2:42-45

Analysis

• The legislation seems at first to provide for the free exercise of religion enshrined in both the Oregon Constitution and the U.S. Constitution, but further analysis presents clear violations of both constitutional provisions.

First note that the state grants itself permission to determine what is a bona fide church or sectarian religious institution. This means that the state alone determines what religious institution is acting in good faith. Again, one may or may not be religious, but when the state grants to itself alone the determination as to what one believes to be real, it violates the freedom of thought and expression enshrined in the state and federal constitutions.

("Section 2. Freedom of worship. All men shall be secure in the Natural right, to worship Almighty God according to the dictates of their own consciences.”) Oregon Constitution. (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”) U.S. Constitution.

The state thus has granted to itself the power to overturn the beliefs of a church or other religious institution, and also to determine when that bona fide church is acting in good faith with its beliefs.

• Additionally the state has granted itself the sole power to determine what the primary purposes of a church are. Since the state gets to determine whether or not a church is acting in good faith, and since they get to decide what its primary purposes are, refusal to baptize an individual who has not renounced what a church may determine to be sinful behavior may result in a lawsuit against the church for discrimination. The state, not the church will decide if baptisms are a primary purpose of the church, and whether or not the church is acting in good faith. One’s opposition to this kind of tyranny should not extend only to when one’s personal ox is being gored.

• Consider also other functions of the church: is serving refreshments for a donation following a service a primary function of the church; serving food to the disadvantages a primary purpose of the church; secretarial services like typing letters, preparing Power Point presentations, classroom decorations and the like; retirement facilities, medical services… Are these primary purposes? Only the state of Oregon knows for sure. If anyone is paid for these services, the state has granted itself the right to investigate and determine what is appropriate under the law.

“This section does not prohibit an employer from enforcing an otherwise valid dress code or policy, as long as the employer provides, on a case-by-case basis, for reasonable accommodation of an individual based on the health and safety needs of the individual.” P.4:27-29

Analysis

This new legislation is included in the non-discrimination in employment part of the Oregon Revised Statutes, and will become law under SB-2.

• Note that the law assumes enforcement of a dress code in any place of employment is discrimination, and then attempts to mitigate the impact of its new law with this section.

• The state grants to itself alone the right to determine when a dress code is valid – that will no longer be up to the employer.

• Further, the employer must provide “on a case-by-case basis, for reasonable accommodation of an individual based on the health and safety needs of the individual.” This appears to mean that when a company has a valid dress code (i.e. approved by the state of Oregon) the employer must violate its own dress code on a case-by-case basis to accommodate the individual based on the health and safety needs of the individual. So if an individual who is

genetically a male, but perceives himself to be female in gender and homosexual in sexual orientation must be accommodated with regard to the dress code for his own health and safety. Note that the transcending consideration is not for the health of the business, customers, or other employees, but rather for the individual. The one MUST be accommodated, and everyone and everything else must accommodate. That this situation may result in the loss of sales and the closure of the company is of no consequence, because the state legislature doesn’t concern itself with these issues.

“A person may not, because of the race, color, religion sex, sexual orientation, national origin, marital status, familial status or source of income of any person:

(a) Refuse to sell, lease or rent any real property to a purchaser.

(b) Expel a purchaser from any real property.

(d) Attempt to discourage the sale, rental or lease of any real property to a purchaser.”

Analysis

• In this section of the ORS the state addresses the issue of discrimination in the sale and lease of property. Note that the new “perceived” sexual orientation category is included, but why does the state think a person about to lease or sell a property should be required to ignore the applicant’s “source of income?”

• Does this mean that if you know that a person applying to rent your commercial property earns his living as a pimp or a methamphetamine manufacturer you cannot discriminate? I wonder why the state would have an interest in requiring anyone to lease property without knowledge as to where the lessee will get the money to pay for it. This new requirement is inserted numerous times in this new legislation!

(a) “’Facially neutral housing policy’ means a guideline, practice, rule, or screening or admission criterion regarding a real property transaction that applies equally to all persons.

(b) ‘Protected class’ means a group of persons distinguished by race, color, religious, sex, sexual orientation, national origin, marital status, familial status, source of income or disability…

(2) A court of the Commissioner of the Bureau of Labor and Industries may find that a person has violated ORS 659A.145 or 659.421 if:

(a) The person applies a facially neutral housing policy to a member of a protected class in a real property transaction involving a residential tenancy subject to ORS chapter 90; and

(b) Application of the policy adversely impacts members of the protected class to a greater extent than the policy adversely impacts persons generally.

(3) In determining under subsection (2) of this section whether a violation has occurred and, if so, what relief should be granted, a court or the commissioner shall consider:

(2) The significance of the adverse impact on the protected class…” P.7:4-19

Analysis

• A court of the Commissioner of the Bureau of Labor and Industries will entertain complaints concerning property owners who apply equal guidelines, practices, rules, screening, and admission criterion to all applicants from the “protected classes” who think they have been discriminated against.

• Discrimination can be found to have occurred regardless of the perfectly equal application of all the rules, guidelines, practices and the like of the property owner! Refusal to rent to an individual can be discrimination if only because the Commissioner of the Bureau of Labor and Industries or a court determines that such a refusal may have an “adverse impact on the protected class…”

• Thus, an landowner may be in full compliance with the law, give equal consideration, and require equal criterion from all parties, and may even be a member of a ‘protected class’ and still find themselves discriminating because a state official has determined that refusal to rent to an individual who does not meet all the criteria everyone else must meet may have an adverse impact on the ‘protected class.’

(4) “As used in this section, ‘unlawful discrimination’ means discrimination based upon personal characteristics including, but not limited to race, religion, sex, sexual orientation, national origin, alienage, marital states or age.” P.10:40-42

Analysis

• This provision occurs in a section of the ORS dealing with recovery of attorney fees and expert witness fees in connection with a court care involving a claim of discrimination.

• Not only are the usual ‘protected classes’ included, but “alienage” is to be included as well. Under these provisions, apparently, aliens who claim discrimination in a court and prevail are able to collect attorney and expert witness fees from the defendant. There seems to be no provision that the alien be in the state legally. If he or she is in the state illegally it would seem that they should have no standing to make a claim of discrimination against a citizen of the state of Oregon, but apparently the Oregon legislature disagrees.