US Congressman Chris Stewart (R-UT) recently reintroduced the Fairness for All Act (FFA) expressly as an alternative to the Equality Act, which passed the House of Representatives but faces procedural headwind in the Senate. While the Democratic Party now controls the Senate, the Republicans have enough votes to sustain a filibuster that would effectively kill the bill.
The ostensible purpose of both bills is to expand the scope of civil rights protections in employment, education, housing and other public accommodations to same-sex-attracted persons and persons who identify as “transgender.” Both expand the ’64 Act’s prohibition of discrimination “because of sex” to comprehend “sexual orientation” and “gender identity.” In a long prologue manifesto, the Equality Act expressly lays out a tendentious moral apologia for transgender ideology. The FFA simply begs the question and gets straight to the modification of the ’64 Act.
Then why the competing bills?
The defining distinction between the bills is their respective accounts of religious liberty and the moral practices of religious persons and organizations. The Equality Act does not take religious persons or organizations into consideration in its sweeping revisions of the ’64 Act. Worse, in fact, it has specific language denying the ability of persons or organizations to object to its provisions on religious grounds. It expressly excludes recourse to the Religious Freedom Restoration Act (“RFRA”) to limit or qualify the scope of the bill, either as sword or shield. Under the Equality Act, one may not bring a cause of action against a regulatory agency if its enforcement of the Act infringes upon religious liberty. Nor may a person or entity who has been sued by that agency (or an individual) use RFRA as a defense against the claim.
In contrast, FFA has many provisions that take religious organizations into account, exempting them from the scope of the bill. For example, the Equality Act expands “public accommodation” to include virtually any place or program outside a private residence. FFA, in contrast, expressly excludes from the definition of “public accommodation” a host of religious institutions, including denominational headquarters, religious schools, churches, mosques, synagogues (and appurtenant properties, such as fellowship halls, rectories, gymnasiums, &c.).
Similarly, while the Equality Act forces transgender ideology into medical and psychological care by prohibiting practices not consistent with the ideology, FFA provides conscience exemptions for such practices, permitting health care providers to refer patients to other providers. And the Equality Act expressly provides that nothing in the bill shall be construed to require any public or private entity to “provide or pay for any benefit or service, including the use of facilities, related to abortion.” The Equality Act, on the other hand, has strong provisions normalizing abortion as just another form of “health care,” akin to treating diabetes or setting a broken arm.
FFA also protects religious adoption and foster agencies from placing children in domestic situations that are contrary to the doctrines of the organization. Rather than provide federal funds directly to the agencies, FFA provides for granting vouchers to eligible prospective foster or adoptive caregivers, who can then choose the foster or adoptive agency consistent with the caregivers’ beliefs and concerns. Thus, religious providers of such services may carry out their mission according to their doctrinal scruples, without fear of losing vital federal funding. The market will decide whether their services are desired.
The FFA is a good-faith attempt at a compromise on these contentious issues, but it still fails in fundamental ways, all of which are related to its begging of the question of the moral, scientific, and social legitimacy of transgender ideology.
The bill assumes as true that a person’s gender can be other than his or her physiological sex as male of female. It forces non-religious public entities to permit access of males to shared restroom and locker room facilities designated for females, for example, violating the privacy and modesty of biological females.
FAA similarly would force homeless or abuse shelters to admit so-called transgender women to women’s facilities. Unlike the Equality Act, FFA requires some evidentiary showing that the person persistently identifies as a gender other than his biological sex. By doing so, it subscribes to the notion that gender can be determined by an act of will.
Catholics have a strong, unequivocal mandate to treat every person with the dignity that attaches to being made in the image of God. This includes being welcoming of, and charitable toward, persons with same-sex attraction and gender dysphoria. We fail to do so at peril of our own souls.
That mandate does not require us to subscribe to gender ideologies.
In trying to protect religious believers from the implications of such ideologies, it still assumes their legitimacy. Thus, it fails to provide a rational policy for these vexing issues, while maintaining the uncompromising truth: “Male and female He created them.”
Kenneth Craycraft is an attorney and the James J. Gardner Family Chair of Moral Theology at Mount St. Mary’s Seminary and School of Theology, in Cincinnati.
This page is available to subscribers. Click here to sign in or get access.