When lived experience becomes the law

The case of the racist janitor:

At Smith College in midsummer 2018, a student was innocently eating lunch in a deserted dorm lounge when a janitor and a campus police officer approached and asked why she was there. The men were white. The student was black and traumatized by the confrontation with an armed police officer. That night she posted on Facebook, “It’s outrageous that some people question my being at Smith College, and my existence overall as a woman of color.”

The ACLU got involved. On Facebook the student identified the janitor, police officer, an off-duty staff member, and a cafeteria worker and accused them of “racist, cowardly acts.” All received nasty, threatening messages. The college administration put the janitor on paid leave, mandated anti-bias training for all of the staff, and hired a law firm to investigate.

The law firm’s report received much less attention, even though (or because) it qualified what really happened. As Michael Powell recently reported in The New York Times, the janitor was over 60, with poor eyesight. The dorm lounge where the student decided to eat her lunch was part of a children’s day camp, open only to authorized personnel. Administrators had advised staff to contact campus police before approaching unauthorized individuals. The police officer was unarmed. The cafeteria worker and off-duty janitor had nothing to do with the incident, but were stigmatized anyway—leading, for the former, to a flare-up of her chronic lupus triggered by stress.

The administration never apologized. The ACLU lawyer sniffed, “It’s troubling that people are more offended by being called racist than by the actual racism in our society.” The ruin of one’s reputation, after all, can’t be compared to the lived experience of an elite student belonging to a historically oppressed group.

The Equality Act will go a long way toward weaponizing everyday human interaction.

“Lived experience” is a key phrase to keep in mind when contemplating the Equality Act (H.R. 5), which the U.S. House of Representatives passed on Feb 25. It’s doubtful that H.R. 5 will pass the Senate—at least for now. But the “Findings and Purpose” section of the bill hangs like an ominous cloud over the future of personal interaction in the United States.

Twenty paragraphs list particular areas of discrimination faced by LGBTQ individuals. These parallel acts of racism in the past because the Equality Act is a rewrite of the Civil Rights Act of 1964. The phrase “and women” is inserted into three of these paragraphs, perhaps to make the bill seem more inclusive. But its purpose is to outlaw all forms of discrimination based on sexual orientation or gender identity. But who decides what is or is not discrimination?

In paragraph 14, “transgender people often encounter discrimination when credit checks or inquiries reveal a former name.” Does questioning a name change indicate bias? Paragraph 15: “About 1 in 5 transgender people experience homelessness.” Is that because they’re denied housing, or because some have psychological needs that haven’t been met? 16: How often are LGBTQ people denied a credit card or student loan “simply because of their sexual orientation or gender identity”? How does the credit card company even know? 17: Why do “older women in same-sex couples have twice the poverty rate of older different-sex couples”? And what’s the remedy?

If H.R. 5 becomes law, anyone of a nontraditional sexual status will be able to bring any charge, based not on objective standards but on the plaintiff’s lived experience. That is, the plaintiff’s perception of harm, like the Smith student whose interpretation of the facts was more valid than the facts. Sincere religious beliefs will be irrelevant by law. It’s hard to miss the triumphalist tone of Americans United for the Separation of Church and State, cheerleading the bill on its website: “a major step forward in stopping the Religious Right’s aggressive agenda to weaponize and redefine ‘religious freedom.’”

The Equality Act makes no attempt to define religious freedom. But it will go a long way toward weaponizing everyday human interaction.