The “Equality Act” – Forcing The Right Value In The Wrong Way

The “Equality Act” – Forcing the Right Value in The Wrong Way
June 11, 2021

The current Civil Rights Act of 1964 prohibits discrimination on the basis of race, color, religion, sex or national origin. The Act prohibited discrimination in public accommodations and federally funded programs.

The Equality Act is potential legislation, being re-proposed, that appears to simply add “sexual orientation” and “gender identity” to the fundamental rights included in Civil Rights Act. Its claim of providing “equality” conveys a basic moral virtue which naturally appeals to the best of our common human nature. Most people have a basic sense that people should not be discriminated against based on their innate differences.

So how could the Equality Act not be as simple as extending equality to everyone?

If we dare to step back, we may realize that we are trying to apply the virtue of equality to an aspect of human sexuality that is simply more distinct and dynamic than the space it is trying to be applied to. The nature of “sexual orientation” and “gender identity” do not represent the same fundamental innate nature of race, color, religion, sex or national origin. The instinct to believe that sexual orientation and gender identity refer to “how people were born” ...or “how God made someone” ... may provide a simple premise, but it actually avoids the fact that there are fundamental differences. As much as we may want to avoid the more complicated nature of these aspects of human life, “sexual orientation” and “gender identity” are not as simply innate nor neutral to the basic ordering of human life.

In attempting to reduce the dynamics of sexual orientation and gender identity to the basic tenants of race, color. gender, and national origin... this legislation is failing to recognize the distinct biological, practical, and moral nature involved with these aspects of sexuality. Unlike all the other categories currently served by the Civil Rights Act...

• Sexual orientation and gender identity are more self-identified dispositions rather than inherent traits. (Race, color, gender, and national origin do not involve protecting that which is subjectively defined.)

• Sexual orientation and gender identity are not immutable... but rather they emerge in more fluid ways which often change significantly through adolescent years. [1] (Race, color, gender, and national origin are definitive and unchanging. Providing for sexual orientation and gender identity which are emerging and unsettled, as if they are not, is misguided.)

• Sexual orientation and gender identity involve both dispositions and choices...which by nature involves more reasonable differences in both the social and moral views involved. (Race, color, gender, and national origin are fundamentally only about an individual’s being, and involve no choices or behaviors.)

• Sexual orientation and gender identity involve that which potentially conflicts with other basic protections. (Race, color. gender, and national origin do not inherently conflict with one another, whereas, sexual orientation and gender identity create conflict with the practice of providing separate spaces - bathrooms and locker rooms - from those who are biologically of the opposite gender.)

• Sexual orientation and gender identity involve a significant potential cost to both the public and private entities who own or manage spaces. (Providing essential equality for race, color, gender, and national origin did not require creating new provisions for unique healthcare or potentially for bathrooms... that might be required.)

As others have noted, the Equality Act lacks a basic recognition of the unique nature of sexual orientation and gender identity that would establish various potential problems, including the lack of protection of women and children due to restrooms being available to any gender based on self-identification [2], women’s athletics being undermined by the participation of biologically male athletes, the nature of requiring public funding for what was previously deemed a personal choice, governmental control over parents regarding changing children’s gender, and medical professionals being required to treat patients according to ideology rather than their best medical judgment. [3]

While those problems are significant, I would like to simply expound briefly on the issue of religious freedom for which this legislation would bring the most fundamental and far-reaching change.

It is vital to recognize that “orientation” and “identity” are two aspects of human sexuality which involve complexity and inherent conflict. Our instinct to simplify the nature of these as simply “categories” of people... for whom the only conflict is with our “social prejudice against differences” ...may be reassuring... but it is also avoiding as much truth as it is trying to embrace. The truth is that neither “sexual orientation” nor “gender identity” are something which one is simply assigned at birth in the same way as race, color, gender, or national origin.

• Research continues to conclude that same sex attraction and gender identity have yet to find a clear and consistent genetic or biological cause. Various biological correlations have been found but not in a consistent manner that can provide a coherent or consistent explanation. [4]

• Many who advocate for the rights of LGBT+ lives, have increasingly defined such rights as rooted in the very nature of one’s freedom of choice, not simply what is innately predetermined. [5]

• Recent surveys have found surprising increases in self-identification of young lives identifying as bi-sexual or transgender, which is arguably reflecting a social- cultural influence of “fluidity” as an expression of ultimate individualism ... more than a change in biology or anything innate. [6]

In addition, both those who experience a primary attraction to their own gender...or a conflict with identifying with their own gender... feel and face the inherent conflict with the normal ordering of human life (i.e. with the natural life-creating complimentary union of male and female... or the identity with the biological body.) Recognizing this conflict is actually an essential part of appreciating the challenges many face. The conflict is not resolved by simply denying it ...and pretending that the only difference such lives face is of a social nature outside of the individual.

The breadth and depth of personal experience associated with “sexual orientation” and “gender identity” deserves far more thought in understanding and caring than the purpose of this particular article allows. For the sake of understanding the proposed Equality Act, the point is that these terms refer to aspects of human life that are fundamentally different than the other categories of race, color, gender, and national origin in which it is assumed they should belong in the same manner.

It is this recognition that allows us to understand that there can be beliefs about “sexual orientation” and “gender identity” which involve neither hatred nor discrimination against such dispositions, while legitimately embracing different beliefs about how to guide the conflict that such dispositions face. The point is that we must recognize that sexual orientation and gender identity are not a matter of simply relating to one’s being ...but to behavior and biological changes. If we allow ourselves as a culture to embrace the false equivalency that these are simply innate categories, then at any age a similar “determination” can be established with whatever social and medical determinations must come with it. Despite the fact that the Equality Act may be focused on housing and employment, it is fundamentally establishing a belief about the nature of sexuality that is fundamentally flawed. At birth, a child’s  race, color, gender, and national origin can be categorically determined. We should accept that applying such determination to what are actually dispositions, is neither factually nor morally grounded.

A parent should not have the government define only one set of morally or medically valid options. Similarly, a “religious community” can hold a posture of genuine love and equality for all it’s members and neighbors alike, regardless of personal dispositions, while also maintaining beliefs about the how those dispositions should be guided by larger views of ultimate good. Such beliefs will be an inherent part of their own communal expectations about the staff that serves that community and the use of their facilities which honors those beliefs.

When it comes to hiring their non-ministerial staff or use of facilities, the majority of religious communities and organizations will not simply disregard what they believe to be a divine design for the ordering of life simply to fulfill a government’s changing ideas about human sexuality... because these ideas are not simply about the basic innate disposition of a category of people... but about what guides those dispositions.  If the Equality Act is voted into law, it will end legal religious status of all religious organizations who do not hire non-ministerial staff and extend use of their facilities in a manner that discriminates, not based on disposition, but on behavior... which would include the majority of Catholic Churches and Catholic based social services, the majority of other Christian Churches and social service organizations, nearly all Islamic Mosques and Islamic based organizations, many Jewish Synagogues, and various other religious entities.

This claim will be denied by many... perhaps with a scoff that suggests it's ridiculous... certainly overly dramatic. Often such claims are. However, the Equality Act brings more changes than most understand. Protecting basic rights and equal access to essential public life (“civic” life) should be supported by everyone. Period. However, the Equality Act would weave over 60 changes through the civil rights laws, change the definition of “sex” and “sexual discrimination” in a manner that could mandate medical procedures [7], and then removes the role of Religious Freedom Restoration Act of 1993 signed into law by Bill Clinton. [8] It brings a change to both what is being protected and how it is being protected. While the Constitution may protect freedom of religious belief at it’s very core, the Equality Act will no longer protect the deepest and most personal source of understanding and convictions about the ordering of human life... about what is true and good.

Some will presume it is simply time to get rid of anything that is rooted in hatred and discrimination. However, as I have sought to clarify, there is no inherent hatred or discrimination. What the vast majority of religious faiths would find fitting, is that which would provide equal access to civic life and civil rights to everyone, would respect and protect everyone of every sexual disposition, while allowing freedom to respect different beliefs about the ordering of sexual life as long as a minor is not fundamentally harmed.

By applying more subjective characteristics to civil rights... and removing religious exemptions... the Equality Act has the potential to lead to greater change than it may seem to imply... like turning on of a switch which sends power to the end point to which it is connected. If the Equality Act passes into legislation, the historic beliefs rooted in the Biblical Scriptures, once foundational, will now be in conflict of legal sanction in at last the potential areas of employment and facility use. [9] This does not mean that people will not have relative freedom to worship or serve those in need. The church is not beholden to any government for it’s beliefs or practices. It does mean that they will no longer be extended the religious privileges or protections which have long been recognized. It could lead towards certain types or segments of “religious” groups becoming the more officially sanctioned versions over time.  

The Equality Act fails to grasp the unique nature of protecting the essential equality of sexual dispositions. There is no reason to choose legislation which would bring such fundamental conflict to the basic freedoms and needed services of so many lives... when a more thoughtful legislation could so easily avoid such loss. I believe that there would be a large-scale uniting around anti-discrimination legislation if it:

• Maintain the provisions for religious beliefs... at least for all staffing, facilities, and services of institutions which are inherently religious.

• Provide freedom from mandatory inclusion of one biological gender competing in the opposite biological gender’s athletics at the higher levels of competition.

• Focus public education on the nature and problems of fundamental discrimination more than on forging affirmation. The proposed Equality Act reflects the subtle but serious shift in which the politics of sexuality which previously claimed only to seek legal acceptance... now demand agreement and affirmation on issues which are neither settled in terms of biological facts nor moral good. It would be more helpful to teach the true nature of tolerance... which is the virtue of how one relates to those they do not agree with ...rather than the nature of intolerance which demands agreement and affirmation.

Addressing these and similar needs would provide equality of treatment in all essential civic life...while also providing freedom for basic gender differences and moral views. A revised approach could easily protect the essential equality of all. The current Equality Act is like the old adage of trying to fit a square peg into a round hole. It will never provide a solid fit...and create damage in the process.

NOTES:

1. What’s Missing From the Conversation About Transgender Kids By Jesse Singal, JULY 25, 2016 - here

2. The concern is not that those who identify as “transgender” by experience are deemed a threat to women or others. (They often face the most vulnerability and seek to avoid harm themselves.) The concern is that these laws open the doors of very personal facilities to the violence of those who do harm. And there is the more subtle but significant boundaries of privacy and modesty. As one describes, “Even without direct, malicious harm, sharing of intimate facilities between the sexes offends privacy and betrays modesty. People have a responsibility, and therefore a right, to practice modesty, to refuse “to unveil what should remain hidden.” This not only involves the right to not be seen by the opposite sex when in a state of undress or tending to bodily functions, but to not be forced to see others of the opposite sex when they are in such a state.” - United States Conference of Catholic Bishops here

3. “Health care providers, both individual professionals and institutions as well as insurers, would lose the ability to exercise their best medical judgment under the “public accommodation” nondiscrimination mandate and be forced to perform or cover “gender affirming” procedures, even if they find them to be detrimental to patients’ health, and even in the case of minors. The medical community, rather than being subjected to legislative mandates with uncertain long-term outcomes, should be free to develop ways of treating gender dysphoria that consider the health and integrity of the whole person.”

   “Parents could be at risk of losing custody of their children for declining “gender affirming” medical procedures that have irreparable consequences. The Equality Act’s health care nondiscrimination provision takes for granted that puberty-blocking, hormonal treatment, and surgical procedures are both necessary and standard, even though this has not been proven and in many cases is still an off-label use of medication.” - United States Conference of Catholic Bishops here.

4. The American Psychiatric Association believes that the causes of sexual orientation (whether homosexual or heterosexual) are not known at this time and likely are multifactorial including biological and behavioral roots which may vary between different individuals and may even vary over time.”  See also: Sexual Orientation, Controversy, and Science here.

5. See: The gay community should stop attacking anyone who dares suggest sexuality is a choice, July 17, 2014 - here

6. 'Society is changing': A record 5.6% of US adults identify as LGBTQ, poll shows. And young people are driving the numbers. Susan Miller USA TODAY - here. “One of the biggest headlines in the 2020 poll is the emergence of Generation Z adults, those 18 to 23: 1 in 6, or 15.9%, identify as LGBTQ. In each older generation, LGBTQ identification is lower, including 2% or less of respondents born before 1965.” Also: 1 in 6 Gen Z adults are LGBT. And this number could continue to grow. By Samantha Schmidt, Feb. 24, 2021 (Washington Post) - here, notes: Jasper Swartz recently realized that nearly all of their friends are “queer in some way.”
   
   They were 8 years old when same-sex marriage became legal in Maryland, about 12 when they realized they were attracted to girls and 14 when they came out as nonbinary, using they/them pronouns. Jasper grew up scrolling through gay memes on Instagram and following transgender influencers on YouTube. They attended a diverse public middle school in Montgomery County, Md., that taught lessons about sexual orientation and gender identity in health class. And in Generation Z, bisexual people make up an even greater share of the LGBT community — 72 percent said they identify as bisexual. This means that nearly 12 percent of all Gen Z adults identify as bisexual, and about 2 percent each identify as gay, lesbian or transgender. Research from the Williams Institute at the UCLA School of Law has similarly found that a key driver of the growth in the LGBT community has been a surge in bisexual women and girls. Bisexual women make up the largest group of LGBT adults — about 35 percent, according to a Williams Institute analysis of data from three population-based surveys. More than one in 10 U.S. high school youth identifies as lesbian, gay or bisexual. And among them, 75 percent are female and 77 percent identify as bisexual.

7. The Act’s main provision is simple but far reaching. It takes a host of Federal laws and replaces the word “sex” with the phrase “sex (including sexual orientation and gender identity).” Rather than mandate or prohibit a few specific actions, the act fundamentally rewrites Federal law in dozens of existing statutes and categories. Thus, there are several aspects of the Act that will immediately take place if passed and others that will not be realized for years as courts interpret and debate the implications of this broad change. - What You Need to Know About H.R. 5 (“The Equality Act”) By H. Robert Showers, Esq. and William R. Thetford, Esq. April 27, 2021 - here
   
   As Beth Waddell states and others have described, this bill “ would create a massive overhaul of our federal civil rights framework by making almost 60 amendments to nearly 10 different laws including the Civil Rights Act of 1964, the Civil Rights Act of 1968, the Fair Housing Act, and the Congressional Accountability Act of 1995.5 It would significantly expand what constitutes a "Public Accommodation" under Title II of the Civil Rights Act of 1964, add "sex" as a protected class where it has not historically been....” – From How the “Equality Act” Is Actually Unequal, Unfair, and Unjust by Mary Beth Waddell, J.D. - here.

8. As one law review states very clearly, “The Act contains no religious exemption and expressly annuls the application of the Religious Freedom Restoration Act from any claim alleging discrimination on the basis of sexual orientation or gender identity under the Act.  The text reads: “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.” “Covered title” is defined as all the areas of the law rewritten by the Act (see point 1).
   
   The Religious Freedom Restoration Act (RFRA) was a bipartisan Act introduced by then-congressman Chuck Schumer (now Senate Democratic Majority leader). It was passed unanimously by the house and almost unanimously by the Senate and was signed by President Clinton. RFRA was intended to make it clear legislatively, in the wake of the controversial Supreme Court Decision Employment Division v. Smith, that First Amendment religious liberty would be treated like other fundamental rights in the Constitution.” - What You Need to Know About H.R. 5 (“The Equality Act”) By H. Robert Showers, Esq. and William R. Thetford, Esq. April 27, 2021 - here

9. Some of the changes regarding church employment are in place because of the Bostock ruling, which exempted only “ministers.”  This legal article suggests that the Supreme Court has shown that the “ministerial” exemption may have application to teachers but nevertheless, it is limited. So under the Equality, there is no clear protection on hiring further staff whose choices would reflect the same values. In addition, “public accommodation” is a central focus and refers to use of property outside of religious functions (i.e. who a church or religious group extends or rents usage to.)

OTHER VOICES:

Cardinal Timothy Dolan, Archbishop of New York:

“The Equality Act is actually deeply intolerant. It forces a highly contested understanding of human nature on all people, and it goes out of its way to target people of faith.

While Catholics must accompany all individuals, we cannot accept an ideology of gender, which, as Pope Francis says, 'denies the difference and reciprocity in nature of a man and a woman and envisages a society without sexual differences, thereby eliminating the anthropological basis of the family.'

The Equality Act seems to go out of its way to target religion. It exempts itself from the Religious Freedom Restoration Act (RFRA), a bill that was passed nearly unanimously by Congress and signed into law by President Bill Clinton in 1993. RFRA protects people of all faiths. But under the Equality Act, a religious service provider is not protected by RFRA if it “discriminates” on the basis of “gender identity.” So, if a Catholic women’s shelter decides that it would be best not to house a biological man self-identifying as a woman in the same space as women who have been victims of domestic abuse, that ministry would not be protected under the Equality Act.

The Equality Act also expands the meaning of public accommodations. ... under the Equality Act, if the church is open to the public, then disallowing the celebration of a same-sex civil marriage would be discrimination on the basis of sexual orientation. Of course, in this instance, the church objects to the activity of the participants, not the “orientation” of the individuals, but the Act does not make that distinction. Our recognition of the inherent dignity of all persons does not entail that we must celebrate conduct contrary to our beliefs.” – From: Cardinal Timothy Dolan -  Archbishop of New York Stand – From: Stand Against Unjust Discrimination: Oppose the Equality Act, March 16, 2021, By Cardinal Timothy Dolan - here

Andrew T. Walker:

The Equality Act represents the most invasive threat to religious liberty ever proposed. Were it to pass, its sweeping effects on religious liberty, free speech, and freedom of conscience would be historic.

To complicate matters, the bill goes out of its way to strip away any notion of religious liberty by audaciously stipulating that the Religious Freedom Restoration Act (RFRA) cannot be appealed to by individuals, businesses, educational institutions, or religious institutions.

Were this bill to become law, traditional Christian, Jewish, and Muslim sexual morality would immediately be treated as suspect and contrary to federal law. - From: The Equality Act: Bad Policy that Poses Great Harms, by Andrew T. Walker, JULY 24, 2015, - here

J.D. Greear, the president of the Southern Baptist Convention:

“Our Gospel teaches us to live at peace with all in our society and that all people are worthy of respect as image bearers of God and entitled to the rights therein. We love our LGBTQ neighbors and want to see them treated as equals and protected as citizens. H.R. 5 does not do that. It is governmental overreach, seeking to normalize a view of sexuality and gender that Jews, Christians, Muslims and millions of Americans from other religious backgrounds have found not only wrong but harmful for humanity, forcing that viewpoint on us and on our children. H.R. 5 undermines rather than advances the cause of human dignity, not only punishing religious organizations, but also harming hundreds of thousands of vulnerable people whom these organizations serve. We want equity. This isn’t it.”  -  From: ‘Poorly named’ Equality Act passes House By Tom Strode, posted February 25, 2021 - here

Russell Moore, president of the Southern Baptist Ethics & Religious Liberty Commission:

The Equality Act “is poorly named because, among other negative effects, it would punish faith-based charities for their core religious beliefs. Every human being ought to be treated with dignity, but government policy must continue to respect differences of belief.... Congress would make the situation worse in this country with this legislation, both in terms of religious freedom and in terms of finding ways for Americans who disagree to work together for the common good.” - From: ‘Poorly named’ Equality Act passes House By Tom Strode, posted February 25, 2021 - here

FURTHER READING:

What You Need to Know About H.R. 5 (“The Equality Act”) By H. Robert Showers, Esq. and William R. Thetford, Esq. April 27, 2021 - here

Anti-Discrimination “Equality” Law Exemptions Do Not Lead to Fairness for All: An International Perspective BY PAUL COLEMAN, APRIL 2, 2019 . Coleman makes a case for how the current exemptions and likely changes based on history will not provide religious protection.

Think the “Equality Act” Will Spare Churches and Religious Schools? Think Again, By Sarah Kramer, February 10, 2021 - here

United States Conference of Catholic Bishops  - here

How the “Equality Act” Is Actually Unequal, Unfair, and Unjust by Mary Beth Waddell, J.D. - here