On Thursday, the House of Representatives passed H.R. 5, “The Equality Act.” Three Republicans joined with every single Democrat to support the bill, which now moves to the Senate. The bill will require 60 votes to pass in the Senate, due to the filibuster. Conservatives and other Americans concerned about the act should reach out to their senators and urge them to oppose the bill.
The bill would amend federal law to prohibit discrimination on the basis of sexual orientation and gender identity, among other things. It would expand the arenas in which non-discrimination law applies and explicitly gut religious freedom protections.
In true Orwellian fashion, the Democrats have crafted an Equality Act that will promote inequality, enabling the government to privilege LGBT ideology over the Americans who disagree, for religious or other reasons. The Equality Act opens the door to a host of governmental actions to stifle dissent and enforce orthodoxy on LGBT issues, particularly the divisive claims of transgender activism.
The bill explicitly endorses the Supreme Court decision in Bostock v. Clayton County (2020), which redefined discrimination on the basis of “sex” to include discrimination on the basis of sexual orientation and gender identity. This arguably constituted an abuse of power, since the plain meaning of “sex” does not include sexual orientation or gender identity and since Congress could not possibly have intended to prohibit this kind of discrimination decades before same-sex marriage.
Here are six reasons to oppose the Equality Act and to contact your senators and representatives to pressure them to vote against this horrific piece of legislation.
1. The Equality Act explicitly guts religious freedom
H.R. 5 explicitly erodes the protections of the Religious Freedom Restoration Act of 1993 (RFRA), a landmark piece of legislation in which Congress and President Bill Clinton championed religious freedom by reprimanding the Supreme Court for trampling on Native Americans’ religious freedom in Employment Division v. Smith (1990). RFRA set a high bar for any government action that violates the right of free exercise of religion — any policy must be narrowly tailored to a compelling government interest and it must use the least-restrictive means to achieve that goal.
Yet the Equality Act hobbles RFRA for any claims involving discrimination on the basis of sexual orientation or gender identity. This isn’t just a conservative talking-point against the Democratic bill — it’s in the plain text of the legislation!
“The Religious Freedom Restoration Act of 1993 (42 U.S.C. 2000bb et seq.) shall not provide a claim concerning, or a defense to a claim under, a covered title, or provide a basis for challenging the application or enforcement of a covered title,” the bill says.
In other words, the “Equality” Act explicitly carves out an exemption from the right of religious freedom — an exemption that only applies to claims of discrimination on the basis of sexual orientation or gender identity.
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2. Endangering women’s privacy and safety
By redefining discrimination on the basis of sex to include discrimination on the basis of transgender identity and by expanding the list of places that fall under public accommodations rules, the Equality Act would force many institutions to open women’s restrooms, locker rooms, and changing rooms to biological males who claim to identify as transgender.
As Supreme Court Justice Samuel Alito explained in his dissent to the Court’s ruling in Bostock v. Clayton County, “it is a matter of concern to many people who are reticent about disrobing or using toilet facilities in the presence of individuals whom they regard as members of the opposite sex. For some, this may simply be a question of modesty, but for others, there is more at stake. For women who have been victimized by sexual assault or abuse, the experience of seeing an unclothed person with the anatomy of a male in a confined and sensitive location such as a bathroom or locker room can cause serious psychological harm.”
Based on broad understandings of “transgender status” that could include those who identify as “gender fluid” and those who have not undergone any surgery to alter their bodies. “A person who has not undertaken any physical transitioning may claim the right to use the bathroom or locker room assigned to the sex with which the individual identifies at that particular time,” Alito reasoned.
This is not to say that transgender people are predators, but to note that women have passionately fought for their rights and now their private spaces will be open to biological males. The true concern is not that a male who suffers from gender dysphoria and who identifies as a female will abuse women, but that prurient men will abuse this loophole and that some women who have experienced sexual assault will be forced to share intimate quarters with biological males.
Lesbian feminist Julia Beck condemned H.R. 5 as “a human rights violation” that will deprive “every single person in this country” of “their right to single-sex sports, shelters, grants, and loans. The law will forbid ever distinguishing between women and men.”
3. Women’s sports
During the COVID-19 pandemic, Democrats have responded to any criticism of lockdown policy with the mantra, “Trust the science.” While the science is very much out on the question of whether or not lockdowns cost more lives in terms of long-term depression or save more lives by slowing the spread of the virus, the science on biological sex is very clear: biological males enjoy physical advantages over biological females, and this translates into unfairness in sports.
Males have biological advantages over females that cannot be erased by simply identifying as female. Due to these long recognized advantages, sporting events have long had different standards for boys and girls to accommodate the athletic striving of biological females. For example, women’s volleyball nets are 7 inches lower, the weight of high school shot put for boys is 36 percent heavier, the hurdle is 6 inches higher for boys, etc. Women’s sports exist to enable fair competition, and transgender activism destroys that possibility.
Duke Law School professor Doriane Lambelet Coleman warned that if women’s sports must admit biological men, “the very best women in the world would lose to literally thousands of boys and men, including thousands who would be considered second-tier.”
4. Ideological enforcement in medicine
While the condition of gender dysphoria (the persistent and painful identification with the gender opposite one’s biological sex) is real and deserves sympathy, it does not erase the fact of biological sex. Human beings are male or female down to the level of their DNA, and males and females have different biochemistry even before they are born. Furthermore, many doctors consider transgender “treatments” to be harmful to the patients involved.
The Equality Act would enforce transgender orthodoxy in the medical field in the name of fighting “discrimination.” If a Roman Catholic hospital refuses to provide hysterectomies except in the case of a dangerous disease, for example, a woman who identifies as a man can sue for discrimination because the hospital won’t remove her uterus.
This bill would allow the government to force doctors to violate the Hippocratic Oath by performing “treatments” that harm healthy bodily function in pursuit of a false gender identity.
This policy would face stiff court challenges, but the explicit exemption from RFRA may enable it to succeed.
Doctors need not be religious to have objections to transgender “treatments.” Endocrinologists like Dr. Michael Laidlaw have argued that cross-sex hormones and “puberty blockers” actually cause a disease, hypogonadatropic hypogonadism. There is no evidence that transgender surgery improves the mental health outcomes of gender dysphoric people. Men and women who formerly identified as transgender and underwent surgery have grown to reject transgender identity and lament the damage they did to their own bodies.
5. The abortion mandate
The Equality Act would not only expand “public accommodations” to include health care providers, but it would interpret “sex discrimination” to include preventing treating “pregnancy… or a related medical condition,” which can include abortion.
Under this bill, a woman could sue a religious employer for discrimination if she got fired for having an abortion. The bill could also weaken the Hyde Amendment, which prohibits federal taxpayer funding for abortion, which may constitute a form of “sex discrimination.”
6. Demonizing the Bible
Not only would the Equality Act effectively privilege LGBT people over those who disagree with LGBT orthodoxy, but it also arguably constitutes a direct attack on Bible-based values.
The Coalition for Jewish Values (CJV), a group representing over 1,500 Orthodox rabbis in public policy debates, condemned H.R. 5 as “a direct attack on Jewish values and practices.” CJV argued that according to the act, a person would be considered “bigoted” if he or she adheres to traditional Jewish doctrine.
The text of H.R. 5 claims that “discrimination against a married same-sex couple could be based on the sex stereotype that marriage should only be between heterosexual couples.”
“The Equality Act expressly declares that the Book of Genesis [see 2:24] and all of the Jewish laws pertaining to marriage as a sanctified union between man and woman (called ‘kiddushin’ in Hebrew, from the word ‘kadosh,’ Holy) are nothing more than engagement in discriminatory stereotypes,” CJV wrote in a letter to House Speaker Nancy Pelosi (D-Calif.). “This is a disgraceful attack upon Jewish Biblical beliefs, rendered no more excusable by the fact that other traditional religious groups have similar tenets.”
In the letter, CJV listed many observant Jewish practices which would be grounds for a discrimination complaint under the proposed legislation, including separate seating at weddings, single-gender dancing, and even separate hours for swimming.
“It is outrageous that Congress would declare us bigoted for simply maintaining our time-honored traditions,” Rabbi Avrohom Gordimer, Chairman of the CJV Rabbinic Circle, said in a statement. “And it is no mere insult; the law even explicitly rejects religious freedom as a defense, meaning it provides Anti-Semites with a new way to persecute the religious Jewish community.”
The attacks on biblical — and traditional sexual — values also target Christians, Muslims, and many secular Americans for mockery and derision.
Most importantly, the law would enforce LGBT orthodoxy explicitly at the expense of religious freedom and freedom of conscience.
In 1993, Democrats and Republicans came together to defend religious freedom. Now, Democrats are on the precipice of eviscerating that central constitutional protection. Americans must loudly protest this horrific bill and amp up the pressure so that moderate Democrats cannot afford to vote for it.
Tyler O’Neil is the author of Making Hate Pay: The Corruption of the Southern Poverty Law Center. Follow him on Twitter at @Tyler2ONeil.