The conflicts and controversies behind the Equality Act

Written by William C. Duncan

March 4, 2021

Last week, the U.S. House of Representatives passed the Equality Act, 224-206, with only three Republicans voting in favor. This is the second time the House has passed the legislation. This bill has been identified by President Joe Biden as a priority for his first 100 days in office. It now goes to the Senate, where a previous version did not receive a hearing.

Given the close partisan split of the Senate, which means that the bill will desperately need Republican support, it was noteworthy that a previous Senate Republican co-sponsor, Susan Collins, has announced that she will not sponsor the bill and may even propose alternative legislation.

What is the Equality Act and why is opinion about it so divided?

In some ways, understanding the Equality Act requires looking at another bill passed in 1964, the Civil Rights Act. That landmark bill prohibited discrimination – in the context of employment, housing, and some facilities open to the public (called public accommodations) – against individuals because of their race, religion, sex or related characteristics.

Eight years later, Congress made a significant addition to the nation’s civil rights laws by enacting Title IX, which prohibited sex discrimination in education.

The basic aim of the Equality Act would be to add two new categories – sexual orientation and gender identity – to the protections of these earlier laws.

Isn’t this already the law, though? The answer is … sort of. In June 2020, the U.S. Supreme Court interpreted the prohibition of sex discrimination in the 1964 law to include sexual orientation and gender identity. Ongoing litigation and administrative regulations seek to extend that same change to Title IX.

So, the Equality Act would officially make these interpretations part of the U.S. Code.

That doesn’t, however, explain the controversy over the bill. To understand that, we need to look at other parts of the 1964 Civil Rights Act and Title IX, and a more recent law that was enacted with overwhelming majorities in 1993.

Both the Civil Rights Act and Title IX include some religious exemptions. It makes sense that the law would not require a denomination to hire someone of another faith or prevent religious schools from requiring faculty and students to live consistent with their beliefs. These common-sense objections were written into that law and were adequate protections for religious groups, since there were no reasons for these groups to discriminate because of race and few instances where religious beliefs would require treating men and women differently in employment, housing, education, or use of facilities.

Sexual orientation and gender identity, by contrast, may have implications for teachings of religious groups. For instance, most major world religious understand marriage as the complementary union of a husband and wife, but the Equality Act refers to this belief as a “sex stereotype.” Since many religious groups teach that men and women are created in the image of God as male and female, they should not be asked to ignore these distinctions in student housing, employment standards, etc.

The religious exemptions in the current civil rights laws don’t address these types of potential conflicts.

In fact, the Equality Act would exacerbate conflicts. This is where the 1993 law comes in. That law was the Religious Freedom Restoration Act. It requires the government to show a compelling reason if it ever creates a burden on religious practice and, even then, to make the burden as narrow as possible. That could be an important protection if conflicts like those previously described arise.

But the Equality Act specifically provides that the Religious Freedom Act does not apply to any conflicts that its provisions may create. Thus, it virtually guarantees religious freedom conflicts and costly litigation (at the least) to sort out claims by religious groups and people of faith.

That is probably why Rep. Chris Stewart recently reintroduced a different law, the Fairness for All Act, that would add the new categories to the civil rights law but would also provide religious freedom protections meant to lessen potential conflicts created by that addition. It would add a number of new religious freedom protections like a requirement that employers accommodate the religious needs of employees, a guarantee that religious schools can’t be punished by a denial of accreditation, and a guarantee that people of faith can’t be punished with denial of a professional licenses.

There are other controversies related to the Equality Act, like the concern that adding gender identity to discrimination laws would result in biological males or females using facilities of the opposite sex or biological males competing in female sports. These concerns would also be raised by the Fairness for All Act.

The religious freedom conflicts, though, seem to create the biggest hurdle to acceptance of the Equality Act. The Fairness for All proposal offers a potential route forward, advancing the goals related to discrimination without sacrificing religious freedom.

If Congress is to find a way to navigate divided public opinion on the Equality Act, it will likely require amendments that make it operate more like Fairness for All.

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