PREPARED STATEMENT OF DONALD DEVINE, FORMER DIRECTOR, U.S.
OFFICE OF PERSONNEL MANAGEMENT
STATEMENT
Thank you, Chairman Canady and Members of the Constitution Subcommittee, for
the opportunity to testify before Congress on an issue that has significant
implications for the management of the federal government and the continued
viability of the civil rights laws of the United States. As you know, I was
Director of the U.S. Office of Personnel Management (OPM) from 1981 to 1985 and,
as such, was responsible for personnel aspects of the Government's management
and equal employment policy.
On May 28, 1998, President Clinton signed Executive Order 13087,(see
footnote 4) which amends Executive Order 11478(see
footnote 5) (issued by President Nixon on August 8, 1969) to include
''sexual orientation'' as a basis for affirmative action and nondiscrimination
in federal employment.
Section 1 of the original Nixon Executive Order 11478 set forth ''the policy
of the Government of the United States to provide equal opportunity in Federal
employment for all persons, to prohibit discrimination in employment because of
race, color, religion, sex, national origin, handicap, or age, and to promote
the full realization of equal employment opportunity through a continuing
affirmative program in each executive department and agency.'' The Nixon order
provides in Section 2 that ''[t]he head of each executive department and agency
shall establish and maintain an affirmative program of equal employment
opportunity for all civilian employees and applicants for employment within his
jurisdiction in accordance with the policy set forth in section 1.'' OPM was
given specific responsibilities with the Equal Employment Opportunity Commission
in Section 4.
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Equal employment is a complex and controversial policy within the federal
Government. Yet, President Clinton's recent order was issued with a minimum of
public and governmental involvement. Congress was not involved, and Congress was
not consulted. The normal lawmaking process was entirely circumvented in this
drastic alteration of civil rights law. The American people were not involved in
this decision, despite the fact that they have repeatedly expressed strong
opinions on many sides of this issue. This order will have a significant impact
on the operations of the federal government, and should be examined very closely
by Congress.
As a threshold matter, the executive order fails to define the term ''sexual
orientation.'' This problem would be somewhat mitigated if the term were
otherwise defined in federal law, but the United States Code is silent as to a
definition of ''sexual orientation.'' We are thus left to conjecture.
Webster's Dictionary(see footnote 6)
does not even define the term ''sexual orientation,'' although it defines
''sexual'' as ''of, relating to, or associated with sex or the sexes; . . .
having or involving sex,'' and defines ''orientation'' as ''a usually general or
lasting direction of thought, inclination, or interest; . . . change of position
by organs, organelles, or organisms in response to external stimulus.''
Under these definitions, the term ''sexual orientation'' is either vague or
incredibly broad. It could even encompass pedophilia, a criminal sexual
perversion in which children are the subject of sexual orientation or interest.
It could encompass bestiality, another sexual disorder in which animals are the
objects of sexual desire or sexual orientation. I am sure your imagination can
conjure up other bizarre ''sexual orientations'' protected under this new
executive order. The point is that the term ''sexual orientation'' is undefined
in law, and this vagueness and ambiguity means that the executive order is open
to considerable interpretation that could lead to abuse and unanticipated
results of all possible types. For those who doubt that unanticipated results
follow from vague legal language, let them consult almost any political science
textbook.
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Perhaps even worse, the new executive order will undermine enforcement of
legitimate civil rights laws protecting individuals based upon the immutable
characteristics that have been established in law as requiring protection. The
new executive order will distract the federal government from its mission to
prevent discrimination against legitimately aggrieved victims on basis of
race, color, religion, sex, national origin, handicap, or age; the categories in
the original Nixon Executive Order 11478. By necessity, resources are limited
and funds spent enforcing sexual orientation are funds not spent upon race or
other factor now in law.
There is a great deal of scientific and medical dispute over the nature of
sexual orientation. Science has not determined conclusively whether what might
be described as ''sexual orientation'' is innate or learned. This ''Nature vs.
Nurture'' question is one we will not resolve today, and probably one that will
probably never be fully answered, since society will probably always carry on a
general dispute as to the extent certain behaviors are genetically innate or
learned. Science rarely settles such matters in a simple manner.
However, we need not resolve the eternal ''Nature vs. Nurture'' question to
recognize the obvious fact that ''sexual orientation'' is not an immutable
characteristic in the same way as race, color, ethnicity, or sex. There are
documented examples of persons who formerly regarded themselves as heterosexual,
who later defined themselves as bisexual or homosexual. These people were
frequently in normal, married relations with a person of the opposite sex,
sometimes even having children, yet for whatever reason switched their sexual
orientation. The reverse is also true. There are numerous examples of people who
formerly regarded themselves as homosexual or bisexual who later defined
themselves as exclusively heterosexual.(see
footnote 7) You may know someone, or know of someone, who has
switched his or her sexual orientation at some point in his or her life. Indeed,
it would seem that a cornerstone of the so-called ''gay rights'' movement is to
enable and convince people to reexamine their existing sexual orientation and to
redefine themselves if appropriate.
Lord Stoddart of Swindon: I give way to the noble and learned Lord.
Lord Ackner: I have an abiding recollection of an observation made by the noble and learned Lord the Lord Chancellor during the debate on the then House of Lords Bill. It was in relation to what was known as the Weatherill amendment. He said,
It never occurred to me why he should be brutally frank. With the majority he had in the House of Commons he could have been delicately frank with just the same degree of success.
When the noble Lord, Lord Quirk, had the courage as a layman to speak in regard to the anal intercourse versus vaginal intercourse debate, there was almost a sense of embarrassment in the House on the basis, I think, that we were dealing with an issue of discrimination and therefore we did not need to go in to all the irrelevant, sordid details.
I congratulate the noble Baroness, Lady Young, as she has produced an amendment which gets away entirely from the question of discrimination. Therefore the kind of attitude I mentioned cannot be adopted by the House. We are not haunted--as we were--by the spectre of the European courts, nor by the pleasure of hearing a tutorial on the subject from the noble Lord, Lord Lester. This is a situation where there is no question of discrimination. I congratulate the noble Lord, Lord McColl, on doing what is essential where one is dealing with questions of health; namely, setting out the situation as a doctor so that the issue of embarrassment does not arise.
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My next point has not been mentioned. Strangely enough, there is a letter in today's Daily Telegraph, signed by a number of doctors, and headed "dangers of unnatural sex". The letter states, among other things,
We have at last reached the position in this House where it is accepted that homosexuality in relation to this kind of activity--which some regard as a perverted activity--involves the young, and anyone else who takes part in it, in considerably greater risk. In those circumstances the Government are legislating in a manner which it is agreed may well increase the prospect of disease or ill health among those whom it is our principal duty to safeguard--the very young. In that situation, the onus on the Government must be particularly high. They must justify why it is necessary to reduce the age from 18 to 16 in regard to this activity. What is the principle involved to justify that? It is not discrimination; that has gone out of the window. What remains? Is it the difficulty in policing the activities between 18 or 16 year-olds and those older? But that applies to every situation where one has the age of consent. On that argument, one would abolish restrictions on age altogether.
What other explanation or suggestion is made? Is it that safe sex is an answer to this particular risk. But it is not. That has been made clear by the medical experts. I quote from an article published about a year ago by Dr Jeffrey Satinover. He says that,
The suggestion is that the ultra tough condom will suit the bill. Everyone knows that the ultra tough condom will not be worn. No condom is often the case because, as has been said, some people delight in taking the risk.
In all the circumstances, I cannot see how this heavy onus can be discharged. That seems to be the right test. The Government are about to embark upon something which can seriously and significantly prejudice the health of the young. In those circumstances, what is their justification? The answer is: none that we have heard here.
Lord Stoddart of Swindon: As a signatory to the amendment, perhaps I should explain some of my reasons for signing it. I believe, as does the noble and learned Lord, Lord Ackner, that this measure
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equalises the position. We have to bear that very much in mind. I also signed the amendment because I believed that it was a reasonable compromise between opposing points of view. I believe that it was a compromise which would be welcomed on all sides of the Committee; and from all sides of the argument. However, that does not appear to have been the case today. That is a matter for regret.
My noble friend Lord Alli said that the amendments were designed to wreck the Bill. That is wholly untrue. The amendments do not wreck the Bill. I believe that the amendments do what amendments should do: they improve the Bill. In no sense do they wreck the Bill; and in no sense can they wreck the Bill. The Bill will stand as the Sexual Offences (Amendment) Bill with the amendments in the same way as it would without them. So they are not wrecking amendments.
The noble Earl, Lord Russell, also said that the public view is not behind the amendments. Where on earth has the noble Earl taken his opinions from?
Viscount Simon: Students.
Lord Stoddart of Swindon: From students, yes. That is a very good intervention. All the letters I have received are in favour of the amendments and have urged me to support the amendments. I did not need to be urged because I was going to do so anyway. But the total number of letters and representations that I have received support the amendment.
Like the noble Viscount, Lord Bledisloe, the noble Earl asked how the amendments will be enforced and said that they are unenforceable; that there will have to be video cameras in the bedrooms. If that is true at 18 and 17 years, it is just as true at 16. So the noble Earl is saying that we should abolish all legislation for any age. Is that not the outcome of the argument? I shall give way in my time.
Viscount Bledisloe: Does the noble Lord recognise that if a man of 20 is in a bedroom with a boy of 17, it raises a strong presumption (probably from the state of the bed) that they have been indulging in sexual activity. If all sexual activity is illegal, there you are. But if some form of sexual activity is legal, and one particular form is illegal, without prying cameras how on earth does anyone know what has gone on in that bedroom?
...
Lord Quirk: My Lords, what we are talking about is widely billed in the media as only to do with lowering
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the age of homosexual consent. Those are the very words in the current issue of our own House Magazine. But that is not so, at any rate for me.
The issue is whether, for young boys and young girls alike, we should legitimise anal intercourse. In my view, the Commons amendment that we are discussing was hasty and irresponsible; based on spurious sound bites about personal freedom and sexual equality. In fact, of course, on the issue of equality, we have had sexual equality since 1994 when it became legal for men and women to indulge in anal intercourse from the age of 18. The Commons amendment to the Crime and Disorder Bill does not introduce a new sexual equality; it merely extends the 1994 equality down from 18 to 16. The equality argument therefore goes out of the window. The issue for me is whether we protect 16 year-olds from a dangerous practice, just as we try to protect them from, say, alcohol with the 18-year rule or from tobacco with widely publicised health warnings.
If, by law, we protect motorcyclists from head injury, we must give thought to protecting the sexually active from anal injury, and the dangers are very real. A book published last year by Jeffrey Satinover--a doctor of medicine and a health science expert--spells out those dangers and I make no apology for his explicitness. He says,
who might, given the Commons amendment, be a girl of 16--
Dr. Satinover goes on to quote another medical expert's book on sexually transmitted viral hepatitis, which I shall spare your Lordships from hearing about. He specifies another dozen terrifying diseases--including cancer induced by anal warts--to which practitioners of anal intercourse are put at what this Dr. F.N. Judson calls "particularly high risk".
Whether those who voted for the amendment in the Commons were aware of these terrible risks, we in this House must certainly not ignore them. It is bad enough that young men and women of 18 already face these risks, with what degree of easily available information I know not. But what possible justification do we have in July 1998 for hurriedly extending exposure to such risks of 16 and 17 year-old girls and boys, teenagers at their most sexually inquisitive and exploratory?
By all means let us encourage youngsters to take full responsibility for their behaviour: but first--at the very least--let us be sure they understand what such responsibility entails. Have the Department for Education and Employment and the Department of Health instilled such understanding?
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http://www.scottish.parliament.uk/official_report/cttee/equal-00/eop00-06.pdf
http://www.house.gov/judiciary/222507.htm