ASK ECFA:

Q. I had a question today from one of our staff about the Equality Act (that has passed the House?). Can you direct us to more information on the status of that bill and its possible impacts?

A. The Equality Act expands the definition of “sex” to include sexual orientation and gender identity in numerous statutes of federal nondiscrimination law. Also, it is strikingly aggressive in confronting religious liberty — much more so than relevant bills of years past. Essentially, it exempts itself from the authority of the Clinton-era Religious Freedom Restoration Act (RFRA), which basically just requires a courtroom balancing test under which the government must prove it has a compelling interest (and is using the least restrictive means) to burden religious liberty.

The Equality Act, also known as H.R.5 on Capitol Hill, has indeed passed the House of Representatives after an almost completely party-line vote (224 to 206) in late February. A similar (mostly) partisan stand-off is evident in the Senate, where the threshold to pass such a bill is usually higher than a simple majority. However, Majority Leader Chuck Schumer (D-N.Y.) has promised to bring it up for a vote, and President Biden has signaled he would sign the bill into law if passed. Currently, the bill is in the Senate Judiciary Committee, but we expect action to come soon.

For more information from ECFA, you may find this recent ECFA Nonprofit Pulse article helpful. Also, if you are looking for practical steps that your ministry can take to prepare in the uncertain environment of the Equality Act and last summer’s Bostock v. Clayton County Supreme Court ruling, we recommend this ECFA webinar. It includes helpful communications, human resources, and board-level strategies that numerous ECFA members have been considering for their own particular contexts.

We also recommend these two, helpful resources Christian Legal Society (CLS): an overview of the Equality Act and The Equality Act's Direct Assault on All Americans' Religious Freedom.