The North Carolina State Bar recently struck down changes to the North Carolina Rules of Professional Conduct that would have included “sexual orientation” in the list of protected classes. The proposed amendment stated that lawyers should not discriminate against anyone on the basis of race, gender, age or other protected status or personal characteristic. Included next to the traditional protected classes was “sexual orientation.”
For the rules to have included a “sexual orientation” class to a general list of protections would have directly attacked First Amendment rights and the legally-protected right for attorney autonomy.
The Ethics Committee voted to withdraw the recommended changes July 23, proving a major success for attorneys in North Carolina and a set back to the gay movement. However, many other organizations are still subject to advocates seeking a “sexual orientation” nondiscrimination class and should be aware of why it is not a protected class.
According to the Human Rights Education Associates, an international non-government human rights organization, sexual orientation is defined as one’s “emotional, romantic, and sexual attraction to another person,” referring specifically to feelings and self-concept. To agree that sexual orientation is a nondiscrimination class is to presuppose that the parties involved are aware, and therefore prejudiced against another’s sexual orientation.
“Sexual orientation” is not an innate, indisputable characteristic, like race, nationality or sex, and instead encapsulates a concept based on changing personas and personal sexual decisions. The United States Supreme Court grants protected status to immutable characteristics, present from birth and has not recognized “sexual orientation” as a protected class. Therefore, to include sexual orientation is nontraditional as it compares to other nondiscrimination provisions. In including this protected class, the North Carolina State Bar would have assumed that every person is born with an inherent sexual orientation, a fact that is not widely accepted or scientifically proven.
The National Association for Research and Therapy of Homosexuality (NARTH) acknowledges the absence of a biological link to homosexual behavior and instead offers studies to show that homosexuality is a combination of social, psychological and biological factors. The American Psychological Association confirms that “sexual orientation is distinct from other components of sex and gender… and is defined in terms of relationships with others.” Dr. Dennis McFadden, a University of Texas neuroscientist, clarifies: “Any human behavior is going to be the result of complex intermingling of genetics and environment.”
The Ethics Committee struck down the inclusion most likely due to the precedent set by the 1995 United States Supreme Court case, Hurley v. Irish American Gay, Lesbian, and Bisexual Group of Boston, Inc. The case explains: “One important manifestation of the principle of free speech is that one who chooses to speak may also decide what not to say.” When applied, a “sexual orientation” protection class would have violated the constitutional protection against compelled speech given to private individuals. The well-established rule against compelled speech and expression prohibits the government from compelling an individual- including an attorney- to express or affirm a message in conflict with his or her private beliefs. If the North Carolina State Bar protected this class, attorneys would have been forced to take cases contrary to their beliefs and therefore, violate expressive First Amendment rights.
A sexual orientation nondiscrimination class would have threatened attorney autonomy as outlined in the Rules of Professional Responsibility. Under these guidelines attorneys are legally allowed to accept or deny a client’s case, just as a private business owner. Should an attorney disagree or find conflict with, a potential client’s case, a sexual orientation protected class would prevent the attorney from refusing to represent the client because his decision might be deemed to have “been influenced by considerations of sexual orientation.” Let me paint you the picture. Suppose a same-sex couple approaches a family law attorney about adopting a child. Regardless of the attorney’s own privately held beliefs, under this provision, the attorney would have been forced to accept the case in fear that his refusal would constitute “sexual orientation” discrimination.
North Carolina was not the only state to consider including “sexual orientation” in the list of protected nondiscrimination classes. In December 2008 the Arizona State Bar proposed adding a “sexual orientation” clause to the Arizona State Bar Oath of Admission. After hearing a month of voiced and written resistance from attorneys and the community, the Arizona State Bar struck down the inclusion. Opposition raised similar critical constitutional arguments including the infringement of First Amendment rights, particularity Freedom of Religion and Freedom of Conscience.
The North Carolina State Bar did reject the proposed provision because it threatened constitutional protected speech and established legal norms. Other similar organizations need to be aware of the legal consequences of including a sexual orientation nondiscrimination class and they too should reject the nontraditional class.