Last week the U.S. House of Representatives approved controversial legislation that is a top priority for LGBTQ advocacy organizations. Titled the “Equality Act” (H.R.5), this bill expands the definition of “sex” in federal nondiscrimination law to include sexual orientation and gender identity (SOGI). Its sweeping approach, particularly its open confrontation with fundamental religious liberty protections, is of concern to many in the faith-based charitable sector.
Like its perennial predecessor — the Employment Non-Discrimination Act (ENDA) — the Equality Act amends Title VII of the Civil Rights Act to include sexual orientation and gender identity as protected classes similar to race, religion, sex, and national origin in employment law. However, this bill goes much further. It adds new SOGI rights into federal laws related to public accommodations, education, federal funding, housing, and more.
While ENDA’s possible interplay with religious liberty was always left muddled and open to wide debate, the Equality Act leaves little question about its intention. In fact, it specifically exempts itself from the purview of the Religious Freedom Restoration Act (RFRA). The Equality Act amends the Civil Rights Act to ensure RFRA can neither undergird a claim nor a defense against a claim within its scope.
Notably, RFRA offers a courtroom balancing test. Rather than pre-judging winners and losers, it simply requires the government to show a compelling interest achieved by the least restrictive means when it burdens a person’s exercise of faith. It was approved in bipartisan fashion and then signed by President Bill Clinton in the White House Rose Garden in 1993. However, many progressives are growing increasingly determined to alter RFRA. They are angered by its application in defense of Hobby Lobby and others seeking a conscience-based refuge from government mandates. Should the Equality Act become law, it would leave a huge and unprecedented hole in this decades-old law.
The Equality Act also opens up other new questions for faith-based organizations. One well known battle has raged over facilities like restrooms, locker rooms, and dressing rooms. The Equality Act would require access to these areas in sync with an individual’s gender identity. In addition, alterations to “pregnancy, childbirth, or a related medical condition” protections worry organizations committed to upholding pro-life principles.
Perhaps most notably, the understanding of what are considered places of public accommodation would vastly grow to cover “any establishment that provides a good, service, or program.” This designation explicitly includes food banks, shelters, funeral parlors, and places that serve health care, accounting, or legal needs. Such an expansion is likely to complicate operations for many faith-based charities, including churches, seeking to care for the physical as well as spiritual needs of their communities.
The House approved the Equality Act by a vote of 224-206 with all but 3 Republicans opposed. A similar stand-off may well form in the Senate where 60 “ayes” are necessary to overcome a legislative filibuster.
Nevertheless, Senate Majority Leader Chuck Schumer (D-N.Y.) intends to push the Equality Act to a vote. In a press conference highlighting House passage of the bill, Schumer lauded it as “critical civil rights legislation” and declared, “I will use my power as Majority Leader to put it on the floor, and let’s see where everybody stands.”
One new development that could affect the state of play is last Friday’s re-introduction of the Fairness for All Act (FFA) by Rep. Chris Stewart (R-Utah). Supporters of FFA suggest that it strikes an appropriate balance protecting SOGI rights without undermining religious liberty. In the past, many ardent supporters and opponents of the Equality Act have been cool to FFA, so it remains to be seen how it may fare in the new political climate of Democrat-controlled Washington.
For his part, President Joe Biden promised he would push for enactment of the Equality Act in his first 100 days in office. Expect action to come.