Today the Houston Chronicle urged us to read the Houston Equal Rights Ordinance (HERO), which will be on the ballot in Houston this November. I have done so and find the ordinance to be an embarrassment. HERO takes a contentious social issue and does nothing but immerse it in an absurd brew of unintelligent definitions and unresolved tensions. HERO is a hot mess of a measure that should be roundly voted down and sent back to the drawing board.
The Chronicle ridicules opponents of HERO for arguing that the law would give men access to women’s restrooms. Yet that is clearly what the law does. HERO permits each individual to choose his or her own gender identity, which, the law states, “may not correspond to the individual’s body or gender as assigned at birth (Article I, sec 17-2).” Under HERO, a man who identifies himself as a woman has a right to use public facilities as a woman. To deny him that right would be a form of discrimination punishable by a maximum fine of $5,000.
But HERO is more than a “bathroom ordinance.” It poses a real threat to religious liberty and free speech. Technically, HERO protects “religion” (both belief and practice) as much as “sexual orientation,” but it lazily fails to show a way out when these come into conflict. It does forbid the City of Houston from discriminating on the basis of sexual orientation, and we know how such a provision has been understood elsewhere. Earlier this year, Atlanta mayor Kasim Reed fired his fire chief, Kelvin Cochran, for describing homosexual acts as sinful in a book the fire chief had written. The mayor said, “I will not tolerate discrimination of any kind within my administration.” If approved, HERO will provide the City of Houston an instrument with which to fire any city employee or official, including any elected one, who openly opposes homosexuality—on the ground that such opposition constitutes discrimination on the basis of sexual orientation.
Just as worrisome, no organization or business that declines to hire active homosexuals will be permitted to enter into contracts with the City of Houston. And all businesses will be subject to a maximum $5,000 fine for refusing to affirm homosexuality and same sex marriage in their provision of goods and services. We have already seen, among many other examples, the case of the Oregon bakery fined more than $100,000 for refusing to produce a cake for a lesbian wedding. This is what is coming to Houston if HERO is approved.
Some Houstonians will welcome such outcomes. But they should not get too excited. HERO is more of a lawsuit than a law. It is blind to the current contours of the issues it purports to address; it does little more than shunt the inevitable conflicts it will generate to the courts. It is a badly conceived and badly written measure that should be rejected without regret.