House passes the Equality Act, sweeping anti-discrimination legislation that threatens religious liberty

The House of Representatives on Thursday narrowly passed the Equality Act, sweeping legislation that would expand U.S. anti-discrimination laws to prohibit discrimination on the basis of sexual preference or self-proclaimed gender identity. Supporters say the bill will establish basic legal protections for lesbian, gay, bisexual, transgender, and queer Americans nationwide that will establish equal justice and fairness for all Americans. Opponents warn that the language of the bill would make mainstream traditional beliefs about marriage, biological facts about sex differences, and religious convictions on these issues punishable under the law.

The Equality Act passed on a nearly party-line vote, 224 to 206, with every Democrat and three Republicans voting in favor of the bill. A previous version of the bill passed the Democrat-controlled House in 2019 but did not advance in the Senate. The bill would amend the Civil Rights Act of 1964 and other civil rights laws to add explicit language including sexual orientation and gender identity as protected classes under federal law.

"In most states, L.G.B.T.Q. people can be discriminated against because of who they are, or who they love," Rep. David Cicilline (D-R.I.), the bill's sponsor in the House, who is gay, said, according to the New York Times. "It is past time for that to change."

The bill is a priority for President Joe Biden, who promised to champion the legislation during the first 100 days of his presidency. This version that passed the House Thursday is not expected to win enough support in the Senate to pass and be signed into law by President Biden unless Democrats take the drastic measure of eliminating the filibuster to bypass Republican opposition and pass the bill with a simple majority.

Sen. Susan Collins (R-Maine) is the only Senate Republican who expressed support for the 2019 bill, but she told the Washington Blade on Feb. 23 that she does not support the current version because it lacks certain revisions she requested. Sen. Mitt Romney (R-Utah) has also expressed opposition to the bill, citing the need for "strong religious liberty protections."

While the bill is supported by constituencies including civil rights groups, pro-LGBT organizations, and multiple corporations and the U.S. Chamber of Congress, it faces opposition from religious groups and conservative activists who agree that LGBT people should be protected from discrimination, but think the Equality Act goes too far by actively discriminating against traditional beliefs on marriage, human sexuality, and the differences between men and women.

What's in the bill?

The Equality Act is broad in scope and according to the Human Rights Campaign, a pro-LGBT activist organization, would add anti-discrimination provisions for sexual orientation and gender identity to areas of federal law including employment, housing, credit, education, public spaces and services, federally funded programs, and jury service.

Last June, the landmark Supreme Court decision in Bostock v. Clayton ruled that Title VII of the Civil Rights Act, which protects against discrimination on the basis of race, color, religion, sex, and national origin also includes protections for lesbian, gay, and transgender Americans. The logic of the court was that if a man who married his same-sex partner were fired from his job for doing so, but a woman who married a man were not fired, the homosexual man was discriminated against on the basis of his sex. Likewise, if a woman who identifies as transgender and presents as a man were fired for how she dressed, but biological men at the same place of employment were not fired for how they dressed, then that transgender individual was discriminated against based on sex.

While the court's ruling was expansive and fundamentally transformed labor law, LGBT activists contend that the court's ruling did not go far enough and say the Equality Act is needed to codify the court's decision not only in employment law, but in other areas as well. President Biden signed an executive order to that effect, directing federal agencies to apply Bostock to all areas of law that prohibit discrimination on the basis of sex. But progressives fear that a future conservative presidential administration would simply reverse Biden's executive order, so they want LGBT people protected by explicit statute.

The Equality Act would amend the Civil Rights Act of 1964, the Fair Housing Act, the Equal Credit Opportunity Act, the Jury Selection and Services Act, and other laws to explicitly include sexual orientation and gender identity as protected classes. It would expand the scope of federal civil rights law to make public spaces and services like a "store, shopping center, online retailer or service provider, salon, bank, gas station, food bank, service or care center, shelter, travel agency, or funeral parlor, or establishment that provides health care, accounting, or legal services" places that could be liable to a discrimination claim.

Additionally, the Equality Act would override the 1993 Religious Freedom Restoration Act, a law that affords exemptions in anti-discrimination law to religious people and organizations who argue such laws infringe on their religious liberty. For example, a Christian charity accused of discriminating against a transgender person in a hiring decision might claim protections under RFRA, citing religious beliefs on the nature of human sexuality, males and females, and their proper roles in a godly marriage.

The Equality Act would specifically prevent an entity from using RFRA to challenge its anti-discrimination provisions or defend itself in a claim made under the law.

Controversies

Advocates for the Equality Act say the bill is needed to extend popular protections from discriminations enjoyed by most Americans to LGBT people.

"Just as [a business] would not be able to turn away somebody for any other prohibited reason in the law, they would not be able to do that for LGBTQ people either. And we think that's a really important principle to maintain," Ian Thompson, senior legislative representative at the ACLU told NPR.

But critics counter that the way the bill is written would proactively discriminate against views that do not conform to the federal government's definition of human sexuality and gender identity. The also say that because an individual's conception of gender identity and sexual orientation are said to be fluid, lawful protections for those classes of people would necessarily be vague, unclear, and even contradictory.

"Rather than finding common-sense, narrowly tailored ways to shield LGBT-identifying Americans from truly unjust discrimination, the bill would act as a sword — to persecute those who don't embrace newfangled gender ideologies," Ryan T. Anderson, the president of the Ethics and Public Policy Center, wrote in an op-ed for the New York Post opposing the bill. Anderson is the author of "When Harry Became Sally: Responding to the Transgender Moment," a book that evaluates the current science on transgender issues and the proposed public policy responses. He has written extensively on sexual orientation and gender identity laws and opposes the Equality Act on grounds it would be harmful to women.

"It would vitiate a sex binary that is quite literally written into our genetic code and is fundamental to many of our laws, not least laws protecting the equality, safety and privacy of women," Anderson argued.

He pointed to legislative text that states, for example: "An individual shall not be denied access to a shared facility, including a restroom, a locker room and a dressing room, that is in accordance with the individual's gender identity."

While public spaces can have separate rooms for men and women, the definition of who is a man and who is a woman is in flux. A male who identifies as a woman must be granted permission to use women's bathrooms, locker rooms, or dressing rooms, or else the entity that hosts that public space, be it a business or even a church, may be liable to a discrimination lawsuit.

As explained by the Heritage Foundation, "Employers, medical professionals, educators, and religious organizations" would be forced "to allow men into women's shelters, pay for or perform sex-change operations, and engage in speech that violates their consciences. Faith-based adoption and foster care agencies would be forced to violate their belief that every child deserves a mother and a father." The Equality Act labels belief in traditional marriage as a "sex stereotype," statutorily stigmatizing the convictions of hundreds of millions of Americans including Christians, Jews, Mormons, and Muslims.

Anderson also noted that the Equality Act treats refusal to perform an abortion as "pregnancy" discrimination, and because the RFRA is overridden, Christian doctors and nurses with pro-life convictions would be forced to perform abortion procedures or risk being sued without any claim to First Amendment protections as a defense.

Other medical and legal experts have raised concerns over women's athletics and parental rights. At a virtual event hosted by the Heritage Foundation on Tuesday, Rep. Vicki Hartzler (R-Mo.), a former teacher and track coach, said that if the Equality Act becomes law "we won't have women's sports that are fair," referring to recent controversies over boys who identify as transgender and competing against and defeating girls in school sports.

Hartzler also warned that passage of the Equality Act could lead some parents to lose custody of their children if a child identifies as transgender but parents do not consent to "gender-affirming" treatments, which can include cross-sex hormone prescriptions or even mutilating breast or genital surgeries.

Hartzler was one of several speakers at the Heritage event, which included doctors, lawyers, and policy experts who spoke out against the Equality Act.

These points were fiercely debated in the House of Representatives before the Equality Act was passed, with Democrats accusing Republicans of making "ridiculous" claims to hide their supposed bigotry against gay and transgender Americans.

As reported by the Christian Post:

During the 90-minute House debate over the bill on Thursday, Rep. Sean Patrick Maloney, D-N.Y., claimed the Equality Act posed no threat to religious freedom and that such concerns being raised by Republicans were "ridiculous."

Maloney then accused the bill's opponents of using religious freedom as a ruse to conceal their "pro-discrimination against gay people."

In response to Maloney's accusations, Rep. Jim Jordan, R-Ohio, declared: "Here it is, on page 25. It says specifically, 'The Religious Freedom Restoration Act of 1993 shall not provide a legal basis for a claim' [against a religious discrimination charge].

"The founders said in the first right, in the First Amendment to the Constitution, you can practice your religion as you see fit. But right here in their bill today, the Democrats say 'No you can't,'" Jordan asserted.

The Equality Act now heads to the U.S. Senate, where Democrats would need Republican support to overcome a filibuster. Sen. Jeff Merkley (D-Ore.), the bill's sponsor in the Senate, has signaled support for changing the Senate rules to end the legislative filibuster and pass the bill, but Democrats would need a majority of senators to vote to do so, and Sens. Kyrsten Sinema (D-Ariz.) and Joe Manchin (D-W.Va.) are opposed to the idea.

With no Republican senator expressing support for the Equality Act, the bill will not advance for the time being.