Wednesday, January 13, 2021 : By Nathan Skates
Joe Biden has made the “Equality Act” a key part of his agenda for his first 100 days in office. The act, which has the support of nearly every Senate and House Democrat, claims to prevent discrimination against LGBTQ people, but many on the right and some on the left warn that the act promotes anything but equality.
The Equality Act would add sexual orientation and gender identity to existing civil rights laws, such as the Civil Rights Act of 1964, making them federally protected classes. The Equality Act is a type of “sexual orientation and gender identity (SOGI)” law. These laws grant special protection to these classes in regard to employment, housing, and more to prevent discrimination.
The House of Representatives passed the Equality Act in 2019, but the bill was not voted on in the Senate.
Supporters say that the act will provide protections for LGBTQ people, claiming that such an act is necessary to ensure equality and prevent discrimination. What constitutes discrimination is not clearly defined, however.
The bill would expand the definition of “public accommodations” in the Civil Rights Act of 1964 to include “nearly every entity that provides goods, services, or programs.” By broadening this definition, private businesses, religious schools or organizations, and medical facilities can be held liable for violating the Equality Act. The bill also “prohibits the Religious Freedom Restoration Act of 1993 from providing a claim, defense, or basis for challenging such protections.”
The bill defines “sex” as determined by gender identity, not biological sex. Critics say that the Equality Act will have negative effects on many groups of Americans. These include:
The Equality Act essentially rolls back equal opportunity and protections for women. One of the most well-known issues involves women’s sports. This issue has become so prevalent that Rep. Tulsi Gabbard, D-Hawaii, recently introduced a bill to prevent biological men from competing in women’s sports.
The act would force schools across the country to allow biological men who identify as women to participate in women’s sports. The broad scope of the legislation would likely allow males to participate in girls’ sports even at religious schools. The act could also mean that women’s professional sports leagues and Olympic teams would be required to allow biological men to participate. Men have a distinct biological advantage in athletic competition and this would deny women opportunities that they diligently worked for. This has already happened on several occasions, including in Connecticut where two biological men placed first and second in the high school girls’ track state championship.
It isn’t just sports where determining sex by gender identity instead of biological sex will deny opportunity to women. Programs like the Women-Owned Small Businesses Federal Contracting program help women compete for government contracts. Under the Equality Act, biological men would have access to funding through programs intended to benefit women.
The Equality Act also makes women less safe. As the Family Research Council pointed out,
“The EA specifically includes shelters in its expanded definition of ‘public accommodations.’ Therefore, shelters created to help battered women heal physically and emotionally from abuse by men would be forced to allow biological men into women’s private spaces, including in showers or sleeping quarters. One unfortunate example of this occurred in Alaska, where a biological man tried to gain residence in a battered women’s shelter (he is now suing the shelter). In California, a biological man was allowed to reside in a women’s shelter, and, according to a legal complaint, sexually harass nine women.”
The Equality Act would also require that “public accommodations” allow people to use the bathroom that aligns with their gender identity, meaning biological males must be permitted to use women’s bathrooms, locker rooms, and places that employ group showers. In addition, domestic violence or rape crisis shelters, drug rehabilitation centers, jails, juvenile detention facilities, and homeless shelters would no longer be allowed to segregate based on biological sex.
The Equality Act applies to everyone—there are no exemptions for religious beliefs about marriage, gender, or sexuality. This elevates the rights and privileges of LGBT members over people of faith. As such, under the law, churches and religious organizations would be required to pay for gender reassignment treatments and surgeries, contraceptives, and abortions. They will have to open same-sex bathrooms to those who identify as the opposite sex. They will be forced to conduct gay marriage ceremonies in the sanctuary. Faith-based adoption agencies could no longer adopt exclusively to heterosexual couples, based on the belief that a child deserves both a mother and a father.
“Essentially, the Equality Act gives people of faith an ultimatum: Change your faith-based practices or face government punishment,” said Sarah Kramer of Alliance Defending Freedom.
And it’s not just conservatives who recognize the danger. Liberal law professor Douglas Laycock of the University of Virginia gave this warning about the Equality Act:
“It goes very far to stamp out religious exemptions. It regulates religious non-profits. And then it says that [the Religious Freedom Restoration Act] does not apply to any claim under the Equality Act. This would be the first time Congress has limited the reach of RFRA. This is not a good-faith attempt to reconcile competing interests. It is an attempt by one side to grab all the disputed territory and to crush the other side.”
Colorado cake baker Jack Phillips has become well known because he was sued for refusing to make a custom wedding cake for a same-sex wedding because it violates his religious beliefs. Phillips was again sued for declining to make a custom gender transition cake.
Business owners across the country have found themselves in similar situations. The Equality Act would mean cases like these become commonplace no matter what state you live in. The Equality Act would force business owners to either violate their religious beliefs or face a lawsuit.
A parent’s right and responsibility to make decisions for and care for the emotional and emotional well-being of their children is already under attack. Many new laws have undermined a parent’s right to know or consent if and when their child receives an abortion, cross-sex hormone therapy, and vaccinations. The Equality Act would nationalize that trend and completely devastate parental rights, according to the Heritage Foundation:
“could give the transgender community a vice grip over the medical profession. It could open the floodgates for lawsuits against doctors who don’t fall in line with transgender ideology. Politicizing the medical treatment of gender dysphoria could lead to more prosecutions against parents who refuse to aid in the sterilization of their children. As more doctors recommend that children take puberty blockers at age 11, cross-sex hormones at 16, and undergo ‘sex-reassignment’ surgeries at 18, parents who resist could face charges of child abuse and lose custody of their children.”
No. The Equality Act has been criticized by some supporters of LGBTQ rights. Gregory Angelo, a Republican gay rights activist, advocated for same-sex marriage, but he warns that the Equality Act is dangerous.
“In the run-up to the United States Supreme Court marriage equality decisions of 2013 and 2015, gay advocates such as myself promised those we disagreed with that allowing same-sex couples to marry would have no effect on them, their families, or their faith. Passage of the ‘Equality Act’ would make liars out of the lot of us. It would put the nonprofit status of religious charities at risk; it would force mom-and-pop businesses to participate in same-sex marriage ceremonies; and it would flout bedrock principles that have served as the foundation of the American experience for centuries. There is potential for federal legislation that guarantees protections for lesbian, gay, bisexual, and transgender Americans while yet shielding people of faith and good will from heavy-handed punishment by the government. But the ‘Equality Act’ isn’t it.”
Many do, of course, but not all. One of the most vocal critics of the Equality Act is the Women’s Liberation Front (WoLF), which actually teamed up with Concerned Women of America (CWA), a conservative group, to advocate against the proposed act. In an op-ed, Natasha Chart, board chair of WoLF, and Penny Nance, president and CEO of CWA, wrote:
“It’s true that we disagree about many (maybe even most) issues. But there is no doubt that American women are in jeopardy of losing hard-fought-for rights. The Equality Act…threatens to erase protections for women — protections that benefit women and society as a whole. Legislative and policy ‘reforms’ proposed in this dangerous bill will lead to blatant violations of our safety, privacy, and dignity. Under this bill, men and boys will take away women’s small business grants and hard-won spots on sports teams; they will be allowed to live in women’s domestic violence shelters and use our locker rooms. And united as women, we are just not going to stand for it.”
No. The U.K. passed its own Equality Act in 2010, though lawmakers did make it a point to include religious exemptions.
The Virginia Values Act, which was passed in 2020 by a Democrat-controlled legislature and signed by Gov. Ralph Northam, D, is an equality measure that, like the proposed Equality Act, does not include religious exemptions. It is currently the subject of several lawsuits that are making their way through the federal and state court system.
If the Equality Act passes, it will essentially nationalize the Virginia Values Act, so how the courts treat the current lawsuits challenging that law could impact how vigorously the new Congress pushes the Equality Act.
No, it is not guaranteed. As it stands right now, the Senate needs 60 votes to invoke cloture, which would end any debate on the legislation and bring it to a floor vote. Although some Republicans might support the measure, the most likely being Susan Collins, R-Maine, and potentially Lisa Murkowski, R-Alaska, the rest of the Republicans will not. Moreover, Democratic Sen. Joe Manchin of West Virginia has gone on the record to say that he does not support the Equality Act without unspecified changes.
However, some Democrats have vowed to get rid of the filibuster and the cloture rule as part of the Senate procedure, which if they are successful, would allow the Equality Act to be brought to the Senate floor for a vote and passed by a simple majority. Beyond that, the case would almost certainly be appealed through the federal court system for a ruling on its constitutionality, particularly as it relates to the First Amendment.
The Equality Act, if passed, will legally elevate sexuality and gender identity above faith and conscience. As with much of the legislation introduced today, it has a nice-sounding name that promises one thing but will ultimately deliver another. The Equality Act promises to ban discrimination against homosexuals and transgenders, but all it does is enable wholesale discrimination against other groups, most notably people of faith and women and girls.
Every American—whether liberal or conservative or whether Christian, Jew, Muslim, or even atheist—should be alarmed at the prospect of the new Congress and administration choosing to run roughshod over the constitutional rights of people to speak and believe as they see fit and those who adhere to traditional biological norms. Under this law, many churches, charities, and businesses will be faced with a no-win dilemma: violate their conscience or shut down. And girls will be forced to undertake their most private bodily functions in full view of biological boys and men, inviting the potential for a variety of abuses.
No one wants homosexuals or transgenders to be mistreated in any way, but this top-down, one-size-fits-all, radical legislative measure will only result in an increasingly totalitarian system that will destroy our most cherished freedoms and institutions and further divide Americans. The Equality Act as written should be vigorously opposed and Democrats and President-Elect Biden should ponder very, very carefully the long-term unintended consequences of what they think they should rush into law.