On Thursday, the House of Representatives passed the so-called Equality Act by a vote of 224 to 206. While Democrats have marketed this legislation as a simple civil rights law designed to protect LGBTQ people from discrimination, it is far from that.
The statutory language instead provides for an extreme remaking of all aspects of society, destroys the promise of equality for women, and threatens religious liberty and the privacy rights of all Americans, especially children. The proposed law also will upend state and federal protections of the unborn—yes, the Equality Act is about abortion too.
Here are the five facts about the Equality Act Americans need to know.
1. The Equality Act Is Deceptively Simple
The statutory language of the Equality Act seems simple enough, with the proposed law adding “sexual orientation” and “gender identity” to the list of protected classes in the five major parts, called titles, of the Civil Rights Act of 1964. Specifically, the Equality Act would add “sexual orientation” and “gender identity” to: Title II, which addresses discrimination in public accommodations; Title III, which covers public facilities; Title IV, which regulates public education; Title VI, which requires nondiscrimination in federally assisted programs; and Title VII, which prohibits discrimination in employment.
“Sexual orientation” and “gender identity” would also be added to the Fair Housing Act, the Equality Credit Opportunity Act, and Title IX of the Education Amendments of 1972.
2. The Devil Is in the Details
Adding “sexual orientation” and “gender identity” to the list of protected classes may seem straightforward enough, but the proposed law does more—much more. These additional provisions will prove devastating on many levels.
The breadth of The Equality Act flows, in part, from the proposed law’s expansion of various definitions throughout all titles of the Civil Rights Act. The term “sex” is redefined to include “sex stereotype,” “sex characteristics,” “sexual orientation,” and “gender identity,” as well as “pregnancy, childbirth, or a related medical condition.” “Gender identity” is defined broadly to “mean the gender-related identity, appearance, mannerisms, or other gender-related characteristics of an individual, regardless of the individual’s designated sex at birth.”
The proposed Equality Act also redefines or expands several terms within each separate title of the Civil Rights Act. For instance, “public accommodations” will now include not merely stadiums but “any other place of or establishment that provides exhibition, entertainment, recreation, exercise, amusement, public gathering, or public display,” and “any establishment that provides a good, service, or program, including 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,” as well as “any train service, bus service, car service, taxi service, airline service, station, depot, or other place of or establishment that provides transportation service.”
Of particular significance is The Equality Act’s express statement that “an establishment “shall not be construed to be limited to a physical facility or place,” as that language has the potential to reach federal, state, and private health insurance coverage and plans.
The Equality Act then adds four significant substantive provisions to federal law. First, the proposed law provides that “pregnancy, childbirth, or a related medical condition shall not receive less favorable treatment than other physical conditions.”
Next, The Equality Act provides that “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.’” Third, where sex is a bona fide occupational qualification, such as with personal caregivers in nursing homes, the act would require an employee to be considered qualified for that position, based on his or her gender identity, and not his or her sex.
Finally, the bill provides that The Religious Freedom Restoration Act of 1993 “shall not provide a claim concerning, or a defense to a claim under,” under The Equality Act, “or provide a basis for challenging the application or enforcement of a covered title.’’
3. The Gender Identity Provisions Are Extreme
The gender identity provisions of the proposed Equality Act are extreme in multiple ways. First, the statutory definition of “gender identity” incorporates language that is both anti-science and antithetical to Judeo-Christian teachings.
By casting an individual’s sex as something merely “designated” “at birth,” The Equality Act ignores the scientific reality of “the inherent, indelible biological differences between male and female [that] go far beyond external genitalia….Each cell in our body has a sex—the same sex, male or female.” It also ignores the theological understanding of the human person as a unity of body and soul.
While Americans may shrug at The Equality Act’s Orwellian use of language, they will be made to care because the proposed law defines “gender identity” so broadly that there is no limit to whom may demand to be treated legally as the opposite sex.
“Gender identity,” according to the act, “means the gender-related identity, appearance, mannerisms, or other gender-related characteristics of an individual, regardless of the individual’s designated sex at birth.” Anyone, at any time, could declare a gender identity contrary to biological reality.
This conclusion is not some conservative conspiracy theory, either. Here’s what the leftist Women’s Liberation Front says about the broad definition of gender identity: “The bill doesn’t mention individuals with clinically diagnosed gender dysphoria, or undertaking surgical or hormonal transition, thus making clear that self-declared gender identity would be sufficient to claim protected legal status.”
The broad definition of “gender identity” is but a part of the problem: The bill’s substantive provisions will devastate the privacy rights of all Americans, especially girls and women.
Under the proposed law, an employer would be required to treat a man who identifies as a woman as a woman for purposes of sensitive jobs, such as law enforcement officials involved in strip searches or supervisors of locker rooms, or handling intimate care in hospitals or long-term care facility. The law currently allows prisoners, patients, or customers to require the government, hospitals, or businesses to staff those positions with an individual of the same sex. The Equality Act would instead mandate that employers allow men who identify as women to perform such invasive tasks.
The law would also require virtually every restroom, locker room, and dressing room in America to be open to individuals of the opposite sex, in accordance instead with the individual’s claimed gender identity. As the Women’s Liberation Front explained:
This means that American women will no longer be able to expect any single-sex facilities when using or being required to stay in:
Shared hospital rooms or wards
Locker rooms and public or group showers
Jails, prisons, or juvenile detention facilities
Overnight drug rehabilitation centers
Domestic violence or rape crisis shelters
It is not just American women—it is American girls. Whether in elementary, middle, or high school, in gymnasiums or swimming facilities, young girls will no longer have a guarantee of privacy or security.
The Equality Act will also require sports competitions and scholarship programs designated for girls and women to admit males if they proclaim a female gender identity, further harming women.
4. The Equality Act Is Also About Abortion
Although not mentioned by name (or euphemism) in The Equality Act, “abortion” is also part and parcel of this proposed law. To understand this reality requires a brief legal primer on the current law concerning sex and pregnancy discrimination.
As Richard Doerfinger explained in his must-read article, “The ‘Equality Act’: Threatening Life and Equality,” Title VII of the Civil Rights Act of 1964 prohibits sex discrimination. The Pregnancy Discrimination Act of 1978 amended that provision to prohibit discrimination based on “pregnancy, childbirth, or related medical conditions” in employment, including in the provision of health insurance. Title VII, however, expressly provided that an employer was not required “to pay for health insurance benefits for abortion, except where the life of the mother would be endangered if the fetus were carried to term . . .”
In contrast, while the Equality Act also defines sex to include “pregnancy, childbirth, or a related medical condition,” it includes no exclusion related to abortion, as there was in Title VII. Significantly, “The Equal Employment Opportunities Commission, and at least one federal appellate court have held that “medical conditions ‘related’ to pregnancy includes abortion.” Thus, the Equality Act’s ban on pregnancy discrimination is also a ban on discrimination related to abortion.
In the employment context of Title VII, this language had a minimal effect, given employers are expressly exempt from providing health insurance coverage for abortion. Yet the Equality Act would add a prohibition of discrimination related to abortion in public accommodations, public facilities, public education, and federal-assisted programs.
Further, the Equality Act makes clear that “pregnancy, childbirth, or a related medical condition shall not receive less favorable treatment than other physical conditions.” Finally, recall that the Equality Act expressly provides that “the Religious Freedom Restoration Act of 1993 shall not provide a claim concerning, or a defense to a claim under,” under the Equality Act, “or provide a basis for challenging the application or enforcement of a covered title.’’
Together, these three aspects of the act would devastate the cause of life. States, local government agencies, educational institutions, and health-care organizations all receive federal funds, and under The Equality Act’s plain language could be required fund abortions. As a federal statute, the Equality Act would trump state bans on such funding, and as a later adopted statute it could put the Hyde Amendment at risk. Private, and even religious, health-care facilities could be forced to provide abortions on equal terms with other medical care.
Of course, religious organizations could seek refuge in the Free Exercise Clause of the First Amendment, but it was the Supreme Court’s cramped interpretation of that protection that prompted bipartisan passage of the Religious Freedom Restoration Act of 1993. The Democratic-controlled Congress, however, with passage of the Equality Act, would gut the protection of religious liberty.
5. Absent A Massive Outcry, the Equality Act Will Pass
Absent an outcry from average Americans, that is exactly the outcome our country faces.
President Biden campaigned on making passage of the Equality Act a legislative priority in his first 100 days of office. In May 2019 the House of Representatives passed The Equality Act, in a vote of 236 to 173, with the unanimous support of Democrats and eight Republicans crossing the aisle to vote in favor of the Bill. The Republican-led Senate kept the bill from reaching the floor, but the Senate companion legislation garnered 47 sponsors, including Republican Sen. Susan Collins, R-Maine.
The bill has again passed the House, and President Biden has promised to sign it into law, leaving the Senate as the last hurdle. With Democrats now controlling the legislative agenda in the Senate, the bill will assuredly see the floor for debate. The question then becomes whether Democrats will retain the 60-vote requirement to end filibusters of legislation, and if so, whether Biden’s party can reach 50 votes with the help of Vice President Vice Kamala Harris.
While things could go either way, given that Democrats have so far succeeded in framing the Equality Act as a civil rights law necessary to protect LGBTQ people from discrimination, passage seems likely—unless average Americans demand defeat of this extremist legislation. For there to be an outcry, however, the public must realize what is at stake. But will they before it is too late?