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Erica Keppler

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Religious Discrimination: Right To or Protection From?

Posted: 12/09/11 01:38 AM ET

In a recent incident of open, hostile, aggressive discrimination against a transgender woman, a store clerk in a Texas Macy's attempted to bar a trans woman from entering a women's fitting room, claiming it was a violation of her Christian religion to allow the trans woman to do that (no specific scripture was cited). Macy's subsequently fired the clerk.

The store clerk, Natalie Johnson, is claiming a religious right to discriminate and suing Macy's for religious discrimination. She is not claiming a right to discriminate against trans people just because they are transgender. No, she is making a very specific point of wrapping her prejudice in religion. Fine. Let's take her position at face value and look at it.

There are only two approaches I can see to making such an argument: 1) that certain people have more rights to do whatever they want than others, or 2) that rights to engage in certain kinds discrimination supersede any rights of protection from that same discrimination. In the first approach, the only way this sales clerk can make her case is to deny the humanity and equal citizenship status of the transgender person she insists on treating unequally. That doesn't fly. She has no special, superior citizenship rights because she professes Christianity. Changing one's sex does not (at least legally) make one a second-class citizen and reduce one to having fewer rights and protections than others. It is reasonable to view both parties as equals in terms of rights and protections.

There actually are examples of the second argument, like the right to discriminate against someone for having been convicted of a felony supersedes the right of the felon to not suffer from discrimination for it. The question, then, is whether her claim of a religious right to discriminate supersedes the rights of protection for those against whom she discriminates. For this argument to have merit, we have to look at both the nature of the right to discriminate and the right of freedom from that same discrimination. We must understand both the right claimed and the discrimination perpetrated.

This clerk is claiming a religious right to discriminate. Here again, there are two ways to look at this: 1) being a member of her religion gives her the right to discriminate against anyone violating her religion, or 2) her religion commands her to discriminate against others (supposedly those who possess certain qualities or engage in certain taboo practices), making discrimination itself a protected religious practice.

The first perspective denies the other person's right to belong to a different religion, or not follow any religion at all. It is either a claim that her religion is superior to all other systems of belief, or it is a declaration of war between all religions in all corners of society. To ban a transgender person from entering a fitting room because your religion opposes it is no different from banning them for wearing or not wearing a yarmulke. That is clearly an act of religious discrimination. Claiming a right to engage in religious discrimination waves your right of protection from religious discrimination.

All that's left is the case where her religion specifically commands her to discriminate, she would be in violation of her own religion if she did not, and to stop her is a discrimination against her own religious practice. This is kind of like when a Hasidic Jewish man is assigned a seat on an airplane next to a strange woman, whom his religion forbids him to sit next to, and he refuses to do so. The problem is that the person against whom she discriminates is another American citizen possessing equal rights, presumably not of her faith, and the discrimination is conducted in a public setting outside the practice of her religion. Just as the Hasidic Jewish man cannot order the woman off the plane because his religion won't let him sit next to her, the sales clerk can't bar the trans woman from the fitting room because her religion doesn't tolerate trans women in fitting rooms (but I would be curious to see that scripture). It is up to each to reconcile their faith with the realities of life in a world with people of differing belief without burdening others. To either kick the woman off the plane or ban the trans woman from the dressing room is to discriminate against them because of the religious belief of another person, and that is quite simply religious discrimination. If your religion commands you to discriminate, then it is incumbent upon you to find a way to deal with that without discriminating against anyone else (like buying two plane tickets or not working in the clothing department).

What shocks me most is the need to write this essay at all. It is truly amazing to me that this claim that freedom of religion gives one the right to discriminate against another American citizen gets as much traction as it does. The point I am trying to make is so glaringly obvious that I am perpetually stunned that there is any need to make it. You do not have the right to force your religion on others. You do not have the right to discriminate against those who do not practice your religion. To discriminate against someone for not practicing your religion is religious discrimination. This sales clerk is demanding her right to practice religious discrimination, and she is saying it is religious discrimination against her to prevent her from doing it. How utterly oxymoronic.

This clerk has no case. Mucho kudos to Macy's for doing the right thing and firing her.