I read with interest Timothy Kelly’s argument against including sexual orientation as a protected class in civil rights legislation.

While his language was, in my opinion, unnecessarily inflammatory, some of the points he raises are worthy of discussion and rebuttal.

Kelly first argues that there is not a single reported “homosexual gene” nor is homosexuality obvious at birth.

He argues that the classification of homosexuality is still uncertain later in life.

These points are used to imply that homosexuality should come under the banner of regulatable behavior. All of the same statements can be made about heterosexuality.

More seriously, a simple genetic test or other overt identifier is simply not relevant in the decision about inclusion of a group as a protected class.

To parallel Kelly’s language, we cannot look at our newborn children and exclaim that we have given birth to a healthy little Christian, if the tenets of personal acceptance of that religion are to be taken seriously.

Yet Kelly does not object to inclusion of religious status in civil rights laws.

Nor can we anticipate children’s political beliefs, but “creed” is an oft-banned basis for discrimination.

We cannot look at our babies and know that they will have a leg blown off while defending our country, but we still protect the disabled.

To take the disability analogy further, it is a point of argument in court as to what constitutes disability.

Yet that has not been sufficient reason to remove disability from our list of protected classes.

In order to prove discrimination in court, one has to prove that one is (or merely was perceived to be by the discriminator) a member of a particular class — such as, for instance, a religious minority.

Self identification and participation in particular behaviors would surely be the test, would they not? How does this differ from homosexuality?

Members of unpopular religious groups as well as those in the majority enjoy protection.

Surely, then, to be included as a protected class cannot require proof of genetic component or favorable majority popular opinion.

Kelly goes on to point out that “regulating behavior is the very heart of America’s legal system.” His point is well taken.

Again, however, this is no argument in favor of or in opposition to inclusion of LGBT individuals in civil rights legislation. Indeed, both inclusion and conscious exclusion constitute “regulation of behavior.”

Paraphrasing him here, he asks if criminals might deserve protection under the law because they are inherently sociopaths.

This analogy is, of course, immaterial given the conclusions we have reached above about the nature of protected classes.

If, however, we accept the implication of involuntarism just for a moment, it may be pointed out that we do have a protection against “involuntary criminality.”

It is called the insanity defense and is available to different degrees in different jurisdictions.

Kelly asserts that gays “are asking that an entire new edifice of civil rights protections be based solely on what kinds of sexual desires a group of people claims to experience.”

This is simply false. LGBTs are asking that new civil rights protections be passed because of a long and well-documented history of legal discrimination and other forms of abuse.

It is the history of abuse, not the nature of the class that drives the desire for protection. He substitutes the “why” with his definition of the class.

In that sense of being a group that has suffered discrimination, how does sexual orientation differ from other groups such as women, senior citizens or disabled persons, none of whom is specifically mentioned for protection in the Constitution?

Kelly goes on to assert that it is vital for Americans to understand that LGBTs want “ethnic-equivalent” protected class status, based solely on how they “say” they want to have sex. If I believed that, I would oppose such legislation. However, the discussion is not about sex.

The discussion is about whether there exists an identifiable class of persons that has suffered toward persecution and/or discrimination and about whether that justifies specific protection under the law.

Rational and reasonable people may differ on that point with respect to any given group.

For me, this is a no-brainer; I believe the case is made on both points, and protections for LGBT persons are well justified.

William Jenks

Associate professor

Chemistry