A new version of the Equality Act, a bill to include various sexual minorities in federal anti-discrimination law, was introduced in Congress earlier this month. It would extend to people who believe they are transgender the protections of the Civil Rights Act of 1964. But it is causing concern among the country’s Catholic bishops.
The Equality Act would take the law that ended Jim Crow into today’s thorny sex and gender politics. The law that forced opened the doors of Mississippi schools to black children would be applied to ensure access for transgender people to the bathroom of their choice.
The text of the bill makes clear that its supporters already believe the Civil Rights Act should be construed in this way. Part of it reads: “The absence of explicit prohibitions of discrimination on the basis of sexual orientation and gender identity under federal statutory law, as well as the existence of legislative proposals that would have provided such explicit prohibitions, has led some courts to conclude incorrectly that current federal laws prohibiting sex discrimination do not prohibit discrimination on the basis of sexual orientation and gender identity.”
The same bill has been introduced in the past, but this time the support of two Republicans allows Democrats to say that it has bipartisan support, as well as, according to a statement from David Cicilline (D-RI, pictured), the most co-sponsors of any ever introduced. The House bill is co-sponsored by the entire Democratic caucus except pro-life Illinois congressman Dan Lipinski.
By adding sexual orientation and gender identity to the list of protected categories in nondiscrimination law, the proposal would effectively abolish sex-segregated spaces of any kind.
That is really the substance of the bill, adding those two categories to several instances of existing law. In addition to amending the Civil Rights Act, it would extend the protections of the Fair Housing Act and the Equal Credit Opportunity Act in a similar way, as well as adding language to prevent gay and transgender people from being removed from juries on those grounds.
The text of the Equality Act has no exemption for religious liberty. In fact, it has the opposite: a provision that would more or less gut the Religious Freedom Restoration Act by pre-emptively excluding any free exercise claims one might raise against the bill.
While religious rites are firmly protected by the Constitution and thus would not be subject to any kind of compulsion, the bill, if made law, would pose a serious threat to Catholic schools and charitable institutions. Their nonprofit status could be revoked if they refuse to change practices deemed discriminatory against sexual minorities.
If, for example, a student at a Catholic school decides they are a different gender than the one they had been previously, but the administration insists that they continue using the bathroom they had been using up to that point, that would be regarded as analogous to racial segregation. The text of the law being amended by the Equality Act was intended to address exactly that, and broadening its meaning is precisely how this bill is supposed to work. Any public funding to the school and its nonprofit status could be jeopardised.
Last year a man who believes he is a woman sought a bikini wax at a ladies’ spa. They refused. He filed a complaint based on Massachusetts non-discrimination statutes. A similar case has arisen in British Columbia. Under the Equality Act this would become the legal equivalent of refusing to serve a black person at a lunch counter.
Three chairmen of United States Conference of Catholic Bishops committees have put their name to a letter, dated March 20, officially opposing the Equality Act: the bishops of Venice and Lincoln, and the Archbishop of Louisville, Joseph Kurtz, the chairman of the religious liberty committee. In a statement outlining their objections, they cited the fact that the Act’s provisions could cause Catholic adoption agencies to either violate their consciences or shut down. Their letter spoke of “destructive litigation” that might be brought to bear against dissenting organisations.
The bishops also said that the Equality Act “would force many healthcare professionals to perform certain treatments and procedures associated with ‘gender transition’ against their best medical or ethical judgment with respect to a patient”.
The bill has also been criticised by the former president of the Log Cabin Republicans, which promotes LGBT rights, in an op-ed for the Washington Examiner, on many of the same grounds as the bishops.
While the bill stands little chance of making it into law at the moment, given that Republicans hold the Senate and the White House, the Equality Act is a good preview of what is likely coming if and when Democrats take back unified control of the government. One might even say that it’s to the GOP’s advantage to force Democrats in swing districts to vote on it over and over again, so that voters know where their legislators stand on religious freedom.
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