Feb. 02, 2021
Ms. Countryman: I appreciate the opportunity to submit this comment on the above-styled proposed rule that would require Nasdaq-listed companies, subject to certain exceptions, (A) to have at least one director who self-identifies as a female, and (B) to have at least one director who self-identifies as Black or African American, Hispanic or Latinx, Asian, Native American or Alaska Native, Native Hawaiian or Pacific Islander, two or more races or ethnicities, or as LGBTQ+, or (C) to explain why the company does not have at least two directors on its board who self-identify in the categories listed above.” The proposed rule raises constitutional concerns, is extremely vague, and has been proposed without sufficient support to allow the Securities & Exchange Commission (SEC) to conclude that it would achieve its stated purpose. I oppose the proposed rule. My objection to the proposed rule is constitutional as well as the rule being intentionally vague. Experience and merit not race and sex should be the criteria. By using outward appearance, who someone sleeps with and other superficial criteria is ridiculous and discriminatory by its very nature. In this upside world where far too many ignore science which states there are only two sexes, male and female, soon the progressive left will be demanding that we have one of every phony gender they can imagine. This is just too ridiculous and nonsensical. To base anything on race, ethnicity, sex, gender or other superficial quality in a time when progressives believe you can be anything you want to be based on your feelings, is nonsensical. I am a 5’ Caucasian female, but I could just as easily say I am a 5’8 Native American male. Who will call that a lie in this crazy time? Second, the proposed rule is impermissibly vague. No one should care who someone sleeps with or anything about sexuality or race, creed, ethnicity … which are all totally irrelevant in a board room. Third, the relationship between the proposed rule and its central claimed benefits has not been proven, nor could it be. Where are there any studies that establish that outward appearances or characteristic diversity improve what a Board of Directors or a corporation accomplishes? Does diversity of appearance boost performance and outcomes? Outcomes and performance are the result of an increase in diverse viewpoints and different worldviews, not skin color or other outward, superficial characteristics. This proposed rule must be rejected as providing the wrong solution to the concerns that it addresses, and one fraught with constitutional objections and is inherently racist and sexist. The real key to corporate success is viewpoint diversity, requiring protection against discrimination on the basis of viewpoint which is now mandated at so many American corporations, educational outlets, newsrooms and throughout society. As an active shareholder in numerous companies listed on the Nasdaq, I'm concerned that the proposed rule may cause companies to break state laws which require directors to serve as stewards for the benefit of shareholders. Selecting directors on the basis of arbitrary characteristics, rather than business acumen, industry knowledge, prior experience, viewpoint diversity and other factors genuinely relevant to firm performance, may cause Nasdaq-listed companies to violate their legal fiduciary obligations to their shareholders an lay themselves open to lawsuits. Thank you for your consideration of this comment. Sincerely, Christine Genge, CPA (ret)