It is difficult to participate in current cultural conversations without hearing the terms “sexual orientation” and “gender identity.” For many, these short phrases are accompanied by a torrent of strong emotions, firm opinions, and painful memories. They bring to mind real people. They bring to mind real struggles.
A bill currently on General File before the Nebraska Legislature, known as LB 173, would prohibit discrimination in employment markets based on these very categories. Additionally, this bill would open the door for local municipalities to pass ordinances expanding protections to include housing and public accommodations.
We must be quick to affirm that unjust discrimination is always wrong. Members of the LGBT community deserve the same respect, care, and love as every other image bearing member of the human family. However, creating these new protected classes would represent a real threat to the religious liberty and freedom of conscience of good Nebraskans.
Race, SOGI, and Discrimination
An objection that is often raised when someone opposes SOGI laws (laws that create protected classes based on sexual orientation and gender identity) is the supposed similarity to race discrimination. If you have ever publicly questioned the validity of these laws or the new morality of the sexual revolution, you likely have been warned that you are in danger of being “on the wrong side of history” for this very reason. You may even have been accused of being homophobic, transphobic, or of being a bigot.
Ad hominem attacks like these, which aim at the person rather than the argument, are never pleasant and usually serve to shut down any helpful discourse. However, despite the extreme rhetoric which often surrounds this topic, the question of the similarity between race and SOGI categories is an extremely important one.
The argument goes that opposing laws which ban discrimination based on sexual orientation and gender identity is like opposing laws which ban discrimination based on race. But is this a valid comparison? There are two important differences between a person’s race and their sexual orientation and gender identity. We must learn to articulate these differences in a winsome way in order to engage the culture on this issue.
Two Important Differences
Behavior vs. Traits
One primary difference is that sexual orientation and gender identity are frequently used to describe an individual’s behavior, whereas race is unrelated to a person’s behavior.
In a report submitted to the United States Commission on Civil Rights, Ryan Anderson stated:
“One’s character is comprised of one’s voluntary actions, and it is reasonable to make judgments about actions. While race implies nothing about one’s actions, sexual orientation and gender identity are frequently descriptions for one’s actions: “gay” denotes men who engage in voluntary sex acts with other men, “lesbian” denotes women who engage in voluntary sex acts with other women, and “transgender” denotes a biological male who voluntarily presents himself to the world as if female or a biological female who voluntarily presents herself to the world as if male. “Race” and “sex,” by contrast, clearly refer to traits, and in the vast majority of cases denote no voluntary actions.” 
To be clear, this does not necessarily mean that no biological factors are involved in determining one’s sexual orientation or gender identity. Rather, the point being spoken here is that the terms sexual orientation and gender identity are frequently used to describe the behavior of individuals. This is the way they are used in SOGI legislation like LB 173. Thus, since these terms are not used to describe innate and fixed properties, they are unfit to be added to the list of protected classes.
In response to the idea that these terms do describe fixed and innate properties within individuals, a recent New Atlantis report states that this idea is “not supported by scientific evidence.” 
Sexual Orientation and Gender Identity are Ambiguous Terms
A second important difference is that sexual orientation and gender identity are inherently ambiguous terms, whereas race is not.
LB 173, the current Nebraska SOGI bill, defines sexual orientation as “actual or perceived homosexuality, heterosexuality, or bisexuality,” and defines gender identity as “the actual or perceived appearance, expression, identity, or behavior of an individual, whether or not that appearance, expression, identity, or behavior is different from the individual’s assigned sex at birth.”
Notice the ambiguity in the definition. First, the bill includes the language of “actual or perceived” in describing sexual orientation and gender identity. This highlights the non-objective nature of SOGI categories because they refer to the actions and conceptions of an individual, not an objective trait such as race, sex, or national origin.
According to Paul McHugh, MD, the former University Distinguished Service Professor of Psychiatry at the Johns Hopkins University School of Medicine, and Gerard V. Bradley, Professor of Law at the University of Notre Dame, “There is no scientific consensus on how to define sexual orientation, and the various definitions proposed by experts produce substantially different groups of people.” 
In other words, there are differing definitions for these terms within the scientific and legal communities. This means that these laws would create protected classes without clearly defined boundaries.
It is also true that these terms historically have continued to expand to include a larger number of individuals. So how would the application of these laws be limited when the definitions of the categories themselves are a subject of continued debate? Without a clearly-defined shared characteristic, protected classes should not be created.
Win the Person, Not the Argument
When discussing and debating this issue it is easy to become concerned with scoring debate points as opposed to sharing the truth in a gracious way. In a culture of moral posturing and a lack of in-depth engagement between people who disagree, we must remain focused on winning the person, not the argument.
With a topic that is as emotionally and politically charged as this, a special degree of humility and patience is required. But we cannot be silent if we are seeking to be faithful ambassadors of Christ. We must take our stand boldly by sharing the truth when appropriate, graciously listening to those who disagree with us, and always living out a heart of love.
Jake is Torchbearer Intern, and is planning to attend Pepperdine Law School, beginning in the Fall of 2017.