The biggest problem with current sexual orientation and gender identity (SOGI) laws—including “Fairness for All,” which proposes a grand-bargain compromise between SOGI laws and religious liberty—is that they do not appropriately define what counts as discriminatory.

A policy response would, therefore, need to cover less ground, target discrimination more narrowly, defines discrimination accurately, and avoid undermining the rights of conscience, religion, and speech. Alas, laws proposed by liberals today do not do this.

In sum, because the justification for laws against sex-based discrimination was weaker than the justification for laws against race-based discrimination, the legal response was more modest: It covered less terrain, defined discrimination more narrowly, and provided greater protection for religious liberty.

Any proposed policies intended to meet the needs of people who identify as LGBT would need to be crafted in a similar manner. Without greater evidence of the justification for specific policy responses—greater documentation of what the needs truly are—it is hard to be specific. In general, however, the need clearly seems weaker than the need for policies designed to deal with discrimination on the basis of race and sex.

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