Testimony in Opposition to S.F. 37 (Kunesh) (Constitutional amendment providing for equality under the law)

Testimony in Opposition to S.F. 37 (Kunesh) (Constitutional amendment providing for equality under the law)
Senate Judiciary and Public Safety Committee
March 3, 2023

PDF Version

Chair Latz and Members of the Committee,

The Minnesota Catholic Conference, the public policy voice of the Catholic bishops in Minnesota, writes to oppose a constitutional amendment aimed at establishing “gender equality.”  Undoubtedly, some proponents want to stop discrimination in all its forms.  We share that goal because each person, regardless of biological sex or asserted gender identity, is made in the image and likeness of God. 

This bill and the proposed constitutional amendment does not appear to be solving an identified problem. Rather, it seems unnecessary. Digging further, however, we note that this amendment is just the replacement for past “gender equality” amendments that will undermine the well-being of women, lead to a host of unforeseen consequences, and be used as a sword against people of faith and others who recognize that human nature is not endlessly malleable.  Biology is not bigotry, and not all distinctions are discrimination. Vote no on the ERA in its current form.

Sex and gender discrimination is already banned in state and federal law

Under existing case law, the Minnesota Constitution commands that all persons must receive the equal protection of the laws.  In addition to longstanding federal and state constitutional protections barring discrimination, the Minnesota Human Rights Act (MHRA) bans sex and gender discrimination (including sexual orientation and gender identity), rendering this ballot measure redundant.  Further, after the Bostock decision by the U.S. Supreme Court, federal civil rights law also forbids discrimination based on sexual orientation and gender identity in the employment context.  And federal courts are already applying Bostock to other areas of the Civil Rights Act. 

With both state and federal law already shielding people from gender-based discrimination, one wonders about the actual legislative intent?  It is important that the legislative intent is fleshed out during the consideration of the amendment, as future courts will have to figure out the contours of what sets of problems this amendment attempts to solve.

During last year’s hearing in the House Judiciary Finance and Civil Law Committee on a similar amendment, when questioned about the intent of the amendment, the proponents were unable to answer simple questions, such as “what is the definition in statute of gender, what definition are we working with?”[1] Representative Kristin Bahner, who was carrying the "gender equality" amendment that contained the following statement: “Equality under the law shall not be abridged or denied on account of gender,”[2] could not herself define what “gender” means. This is extremely problematic. Legal counsel for proponents at the time noted that “there obviously is not, in this specific amendment, a definition of gender [. . .] but it is understood to be inclusive.”[3]

The terms gender and sex are both used throughout state statute, but are not typically defined, and no definition of gender has been assigned to this amendment. Again, in other words, by passing this bill, we will be asking voters to take a stance on an issue that is problematic and undefined and will be giving an invitation to courts to define it how they please in myriad claims. And in a climate where the number of so-called genders seems to be rapidly expanding, we are opening up a pandora’s box of novel claims that will have impacts on other rights when this equality mandate is made constitutional.[4] 

The amendment is not a shield against discrimination, but instead a sword against those who disagree

As described above, the amendment is unnecessary as a shield against discrimination. We are concerned, however, that it will be used instead as a sword against people of faith and others who reject the concept of gender identity.  The MHRA does not (quite reasonably) preclude all distinctions based on sex or gender.  It further provides conscience protections and religious liberty for those persons and groups who make sex- and gender-based distinctions in education, employment, housing, and association.  The MHRA thus represents a balancing of interests that were carefully crafted during the legislative process.  

This amendment, however, gives judges a new tool to override both statutory and state constitutional protections for conscience and religious freedom when those come into conflict with new forms of gender equality.  In particular, it will undermine the ability of religious non-profits, charities, and healthcare facilities to serve consistent with their views on sexual identity.

The ongoing rebellion against human nature by gender activists will likely lead to a host of unforeseen consequences

The amendment would empower judges to identify new forms of sex and gender discrimination, unthinkable even just five years ago.  Here is just a short list of the possibilities:  the mandatory mixing of the sexes in homeless shelters; gender-neutral restrooms and changing facilities in both public and private facilities; mandated state-funded assisted reproduction technology or surrogacy arrangements for transgender persons and same-sex couples; mandatory insurance coverage (public and private) for gender transition therapies; and the erosion of healthcare rights of conscience. 

As with taxpayer funding of abortion, already mandated by our state Supreme Court to supposedly ensure equality for all women, taxpayers will foot the bill for these emerging mandates. 

The triumph of gender identity is the real war on women

The irony of an amendment that protects gender equality is that it undermines the equality of the sexes, seen most plainly in the absurd spectacle of biological males dominating women’s sports. The amorphous concept of gender swallows whole the matter of the equality of the sexes, not to mention the reality of sexual difference and the distinctions that are made because of those differences.  Though there is an errant view of the sexes that depicts equality as sameness, thereby making women’s equality dependent on their ability to behave like men, at least it recognizes the reality of the sexual binary.  Gender identity, however, allows men to play women, and vice versa, undermining both women’s equality and the dignity of the unique nature of women altogether.  

Ironically, proponents of the Equal Rights Amendment in Minnesota are no longer fighting for women, as once may have been the intention. Instead, they are trying to further entrench radical gender ideology into law, without even being able to offer a definition to Minnesota voters.

For all these reasons, the Legislature should reject this that is a redundancy in combatting unjust discrimination and will empower judges to impose many unforeseen consequences.  Thank you for your consideration. 

Respectfully submitted,

Maggee Hangge, Policy Associate, [email protected]

FOOTNOTES:

[1] https://www.house.leg.state.mn.us/hjvid/92/895211

[2] https://www.revisor.mn.gov/bills/bill.php?b=House&f=HF0726&ssn=0&y=2021

[3] https://www.house.leg.state.mn.us/hjvid/92/895211, at 38:05-38:40

[4] One partial remedy is to limit the amendment to barring sex discrimination only, not gender identity, as 25 of the other 26 states that have adopted the ERA have done.