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H.R. 5, known as the “Equality Act,” will be the talk of the town this week as the Democrat-dominated House approved the bill, which will now go to the Senate.
This Equality Act is not only widely supported among Democrats in Congress, but by President Joe Biden himself, who presented this legislative project as one of the most important for his first 100 days in office.
According to NPR, this is a “bill that would prohibit discrimination against people based on their sexual orientation and gender identity. It would also substantially expand the areas to which those anti-discrimination protections apply.”
Biden again showed his support for the bill in a statement last week, when House Democrats introduced the bill: “I urge Congress to swiftly pass this historic legislation,” the president wrote. “Every person should be treated with dignity and respect, and this bill represents a critical step toward ensuring that America lives up to our founding values of equality and liberty for all.”
But Biden’s assertion that all people should be treated with dignity and respect is being challenged because Republicans and conservative Americans argue that the Equality Act fails to respect or forgets about citizens with moral or conscientious objections.
At the same time, some criticize the law because, they argue, it directly affects women’s spaces in society. Others, moreover, have criticized the law by pointing out that it is, in reality, a “Trojan horse” to push abortion throughout the United States.
Supporters of the Equality Act
Those in favor of the law base their support on the fact that the legislation will be much clearer in fighting discrimination. In addition, “Supporters say the Equality Act simply extends the basic and widely accepted principles of the Civil Rights Act to classes of people that the bill does not explicitly protect,” reads NPR.
This Equality Act would, in theory, “amend the Civil Rights Act of 1964 to explicitly prevent discrimination based on sexual orientation and gender identity,” NPR noted.
According to the NPR report, this bill has been introduced multiple times and passed the House in 2019. However, the impact of the legislation would be different in practical terms going forward because the Supreme Court ruled in June 2020, in Bostock v. Clayton County, “that the protections guaranteed by the Civil Rights Act of 1964 on the basis of sex also extend to discrimination against lesbian, gay and transgender Americans.”
NPR noted that the logic of this ruling is based on, for example, “a man who loses his job because he has a same-sex partner faces discrimination on the basis of sex, because, if he were a woman, he would not have faced such discrimination.”
This law would then explicitly enshrine those anti-discrimination protections for sexual orientation and gender identity, “rather than having those protections included under the umbrella of ‘sex.'” “However,” NPR noted, “the Equality Act would also substantially expand those protections.”
For example, the Civil Rights Act covered discrimination in areas such as employment and housing. The Equality Act would extend coverage to federally funded programs, such as “public accommodations,” which is a fairly broad category that includes retail stores and stadiums; to give two examples.
“One of the consequences of all this is that the Equality Act would affect businesses such as florists and bakeries that have been at the center of discrimination court cases in recent years; for example, a baker who doesn’t want to offer a cake for a same-sex wedding,” reads the NPR report.
It adds in its explanation, “Importantly, the bill also explicitly says it supersedes the Religious Freedom Restoration Act (RFRA). That law, passed in 1993, set a higher bar for the government to uphold laws if people argued that those laws infringed on religious freedom.”
With this Equality Act, an entity, whatever it may be, would not be able to use the Religious Freedom Restoration Act to challenge provisions of the law. Nor could it use RFRA as a defense to a claim brought under the law.
With respect to the last, proponents of the Equality Act “argue that the bill will prevent entities from using that law as a ‘license to discriminate,’ a phrase echoed by Human Rights Watch and many other supporters of the Equality Act,” NPR noted.
This is probably one of the most troubling points of the law, although it is not the only one.
Growing criticism
An opinion column by Inez F. Stepman titled “Equality Act Makes Women Unequal” was published in The Wall Street Journal (WSJ). The piece has several criticisms of the Democrat-backed legislation.
“H.R. 5, dubbed the Equality Act, would redefine “sex” in federal civil rights laws to include “sexual orientation” and “gender identity,” bypassing basic biology and millennia of tradition,” the article says. “This is not just a matter of semantics. Nor is it a mere attempt to ban employment discrimination against sexual minorities. A 2020 U.S. Supreme Court ruling already does that.”
So, if this is so, what is being sought by this law? That’s the unspoken question left by the WSJ article.
“The Equality Act would go much further by making the distinction between “identity” and biology illegal and thus prioritizing transgender people over women. By erasing sex as a distinct legal category, the measure threatens to open up female-only spaces and opportunities designed to increase the representation of girls to biological men, potentially jeopardizing the safety of women and girls,” the article reads.
The Equality Act, Stepman notes, “would threaten the existence of women’s prisons, girls’ locker rooms in public schools, and women’s and girls’ sports teams. It would limit freedom of speech, freedom of association, accurate data collection and scientific research. It would threaten the rights of doctors who doubt the appropriateness of performing life-changing and reproductively limiting procedures, and of parents seeking to protect their minor children from such treatment.”
Stepman is not the only person concerned about the equality law. An article titled “Equality Act is a Trojan Horse for Abortion Lobby and More,” originally published in The Daily Signal, explains how the law would benefit pro-abortion organizations.
“The Equality Act would amend federal civil rights law by adding “sexual orientation” and “gender identity” as protected classes,” the article explains. “In recent years, Heritage Foundation scholars have sounded the alarm about the various groups that would be harmed if the bill were to become law, including employers and employees, medical professionals, parents and children, women and nonprofits, and volunteers.”
But that’s not all, according to the article, another concern is that the legislation “would have a devastating impact on a number of current pro-life policies and protections. It would lay the groundwork for eliminating bans on taxpayer-funded abortions at the state and federal level; purge existing legal conscience protection provisions for pro-life individuals and entities in the health care context; and overturn hard-fought court battles that upheld religious liberty protections for individuals and organizations, such as the “Little Sisters of the Poor,” an order of Catholic nuns that has spent nearly a decade in litigation over Obamacare’s onerous contraception mandate.”
How would all this happen? As explained in the release, the Equality Act adds the term “sex” to Title II of the Civil Rights Act of 1964 on public accommodations to mean pregnancy, childbirth or related medical conditions. And, “both the Equal Employment Opportunity Commission and the Third Circuit Court of Appeals have interpreted “related medical condition” to include abortion.”
Then, because of the way the Equality Act Congress will vote on is written, “this new definition of sex discrimination,” which is understood to mean a medical condition such as abortion, will be implemented in areas of law in federal assistance programs, public accommodations and Obamacare’s nondiscrimination provision.
“In practice, it could mean that a health care provider would be discriminating on the basis of sex if it refused to perform an abortion procedure; a hospital could be discriminating on the basis of sex if it refused to allow abortions to be performed on its premises; and health insurance plans could be discriminating on the basis of sex if they do not include coverage for selective abortions,” the piece explained.
It added: “The Equality Act specifically states that no claims for relief can be made under the Religious Freedom Restoration Act (RFRA),” explaining that it raises concerns about “the absence of conscience protections in the Equality Act for people with moral or religious objections.”
These moral or religious objection laws, now a tradition, “ensure that individuals and entities are not forced to engage in practices that violate their sincerely held moral, ethical or religious convictions.”
The Equality Act falters in going against the freedom of these individuals, which is why many conservatives and Republicans have argued that, in reality, this legislation bets neither equality nor freedom for all.
In the WSJ article, which focused on criticizing more the part that affected women, there is a phrase that would encompass all the criticisms: “All people are created equal, but Congress is considering a bill that would make some people more equal than others”.
Will it pass?
The Equality Act passed the Democrat-dominated lower house. But it will be much more difficult to get the majority of 60 required in the Upper House to invoke cloture. Remember, right now control of the Senate is split 50-50.
The votes of the more moderate Democrats will be key, as well as seeing where the less conservative Republicans stand.
For example, Mitt Romney, Senator from Utah, said to the Washington Blade that he will not support the bill, citing religious freedom.
“Senator Romney believes that strong religious liberty protections are essential to any legislation on this issue, and since those provisions are absent in this particular bill, he cannot support it,” his spokesperson told the Blade.
Serán claves los votos de los demócratas más moderados y, además, ver la postura de los republicanos menos conservadores.
Emmanuel Alejandro Rondón is a journalist at El American specializing in the areas of American politics and media analysis // Emmanuel Alejandro Rondón es periodista de El American especializado en las áreas de política americana y análisis de medios de comunicación.
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