Complimentary Story
March 2024When is it right to do wrong, in order to get a chance to do right? The answer is never! That’s pragmatism…and it takes us places we should not be going.
Wisconsin has the unfortunate distinction of being among the first states in the nation to add sexual orientation as a protected class in non-discrimination laws related to employment, housing, and public accommodations.
Non-discrimination laws had heretofore been used to protect innate or immutable characteristics such as sex, age, race, nationality, ethnicity, disabilities or to protect strongly held religious beliefs. The addition of sexual orientation violated that premise since sexual orientation is not an immutable or innate characteristic nor is it part of some strongly held religious belief.
Through the years, this non-discrimination language has remained largely unchanged. In recent years, however, and not surprisingly, there has been some talk and some effort to add gender identity to non-discrimination statutory language. Of course, gender identity is not an immutable or innate characteristic, nor is it part of some strongly held religious belief. In spite of that reality, recently, Republicans in the state legislature turned talk into action in a surprising bill.
Assembly Bill 953 and its senate companion Senate Bill 905 deal with direct primary care agreements. This bill exempts valid direct primary care agreements from the application of insurance law. In laymen’s language, direct primary care is one option for covering the cost of medical care. It’s an agreement you make directly with your provider. It doesn’t use insurance claims. More and more people are looking for direct primary care providers to cut out insurance.
On the face of it, we shouldn’t have any problem with this bill. In fact, all things being equal, we might even actually support such a proposal because in many ways, protecting direct primary care providers in our state helps families.
Unfortunately, this is the bill Republicans decided to use to add gender identity to the non-discrimination language. This is not the first time a bill to protect direct primary care providers has been introduced in our state. Two sessions ago, such a bill passed without this non-discrimination language. The governor vetoed it, saying he did so because the bill did not include gender identity in the non-discrimination section.
This year, the bill is back complete with the non-discrimination language that includes gender identity. In the public hearing in the senate, the senate author said she included gender identity because she believes the governor will sign the bill with that group given special rights and protections.
Adding gender identity as a protected class in this bill is dangerous. First, it sets a precedent for gender identity being added in other areas of the law. In this particular case and with the specific wording in the bill, this could mean that a direct primary care provider has his or her religious freedom or conscience rights violated, in addition to having to violate his or her best medical judgment.
One argument the Republican authors and supporters are using to defend including gender identity is the very poor US Supreme Court Bostock decision. That decision dealt with Title VII employment matters and the court opined that employers cannot discriminate on the basis of gender identity, essentially changing the definition of “sex” to include gender identity. In the majority opinion, the justices made it clear that this decision applies only to Title VII employment matters.
That reality apparently doesn’t matter to the authors and co-sponsors of these current direct primary care bills. They maintain this court decision demands including gender identity. It does not, nor does any law or Wisconsin court decision demand its inclusion. This is an inclusion for one reason — to attempt to get the governor to sign this bill — this is raw political pragmatism, where the desired ends supposedly justify the means.
If this bill passes with this gender identity language this session and the governor signs it, you can be sure that gender identity as a protected class will be enshrined in Wisconsin law. It’s profoundly sad that an otherwise good bill that could help many in our state gets used in a pragmatic way, trounces on rights, and will definitely take us places we should not be going.
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