The reintroduction of the wide-reaching Equality Act, billed as a necessary measure to enshrine protections for the LGBT community into federal civil rights law, was announced Thursday, much to the chagrin of some conservatives and Christian groups.
Sens. Jeff Merkley, D-Ore., Cory Booker, D-N.J., and Tammy Baldwin, D-Wis., announced the bill's introduction in the United States Senate while Rep. David Cicilline, D-R.I., announced the introduction of the bill in the House of Representatives. According to a press release from Merkley’s office, “the Senate bill will be formally introduced next week when the Senate floor re-opens for bill introductions.”
“All of us go to work and school, go home, and go shopping, and none of us should have to keep our families hidden or pretend to be someone we’re not to do those things,” said Merkley. “But in 29 states, Americans can still be evicted, be thrown out of a restaurant, or be denied a loan because of who they are or whom they love. We all love the vision of America as a land of freedom of equality, but are we willing to take the steps to make that vision closer to reality?”
“This legislation signifies the best of who we are as Americans,” added Booker. “The fact that we even need this legislation reflects the worst of who we are. If we are going to celebrate ideals of liberty and freedom, we must have comprehensive and nationwide protections for LGBTQ+ Americans.”
Kristen Waggoner, general counsel at the First Amendment law firm Alliance Defending Freedom, was one of many conservatives reacting unfavorably to the news of the bill’s re-emergence.
“Our nation’s laws should respect the constitutionally guaranteed freedoms of every American citizen. All of us — regardless of sex or any other classification — deserve better than the profound inequality that the conscience-crushing, deceptively titled Equality Act reintroduced by Congress today promises,” she said in a statement Thursday.
“This proposed legislation punishes and marginalizes people who hold decent and honorable beliefs about marriage or dare to believe the scientific evidence regarding the physical differences between men and women. The Equality Act would deny female athletes fair competition in sports, ignore women’s unique health needs, and force vulnerable girls to share intimate spaces with men who identify as female,” Waggoner warned.
“Many in our nation respectfully disagree on important issues such as marriage and human sexuality. Unfortunately, the Equality Act criminalizes these very beliefs held by major faith groups since the dawn of time and, instead, demands absolute uniformity of thought. The freedom to live peaceably according to our beliefs is a fundamental right, resting in our human dignity and codified by the First Amendment,” she continued.
“The Equality Act dares to treat reasonable people as hostile to the state and unfit to participate in the marketplace. Our nation can and must do better.”
Ryan T. Anderson, president of the Ethics and Public Policy Center, described the Equality Act as “Orwellian” and “legislative malpractice that turns equality on its head,” adding, “It isn’t drafted as a shield to protect vulnerable minorities from unjust discrimination, but as a sword to persecute those who do not embrace new sexual and gender ideologies.”
“It sacrifices the equality, safety, and privacy of women, while privileging men who identify as women,” he added. “If this bill becomes law, they’d have a civil right to spend the night in a battered women’s shelter, disrobe in a women’s locker room, and compete on a women’s sports team — even children at K-12 public schools.”
The Equality Act will also have implications for religious institutions, Anderson said, with the possibility of facing “federal sanction for operating according to basic biology and mainstream biblical teaching on sex and marriage.”
Noting that “this act exempts itself from the Religious Freedom Restoration Act,” Anderson concluded that under the Equality Act, “Pope Francis would be treated as the legal equivalent of a Jim Crow segregationist.”
“Medical doctors — secular and religious — whose expert conclusion is that sex-reassignment procedures are misguided would now run afoul of our civil rights laws. And any refusal to support or provide abortions would now be treated as ‘pregnancy’ discrimination. And no one — not even the act’s sponsors — can tell us what would be required under the act to avoid committing ‘discrimination’ in the case of ‘non-binary’ gender identities.”
The bill previously passed the Democratic-controlled House of Representatives in 2019 by a margin of 236-173. All Democrats who voted on the legislation voted in favor of passage along with eight Republicans: Reps. Susan Brooks, R-Ind., Mario Diaz Balart, R-Fla., Brian Fitzpatrick, R-Pa., Will Hurd, R-Texas, John Katko, R-N.Y., Tom Reed, R-N.Y., Elise Stefanik, R-N.Y. and Greg Walden, R-Ore. All Republican supporters of the Equality Act except Brooks, Hurd and Walden remain in office in the 117th Congress.
While the Equality Act was introduced in the Republican-controlled Senate during the previous Congress, it was never brought up for a vote. All but one Senate Democrat, Joe Manchin of West Virginia, signed on as a sponsor or co-sponsor, along with one Republican, Sen. Susan Collins, R-Maine.
The balance of power in Washington has shifted quite a bit since the last time the Equality Act was brought up for a vote. Democrats only have 221 seats in the House of Representatives as opposed to 235 when the Equality Act passed the House. Assuming that every Democrat votes in favor of the legislation, along with a handful of Republicans, the Equality Act will pass the House.
The Equality Act’s future in the Senate, where Democrats and Republicans have an equal number of seats, remains uncertain. While Democrats control the chamber thanks to the tie-breaking vote of Vice President Kamala Harris, current Senate rules require most legislation to receive the support of 60 senators to pass. Based on the makeup of the Senate, Democrats would need to secure the support of every single one of their senators as well as 10 Republicans.
Democrats have threatened to invoke the so-called “nuclear option,” which would enable legislation to pass the Senate with a simple majority, if they fail to pass the Equality Act and other legislative initiatives under the current rules. Two Senate Democrats, Manchin and Krysten Sinema of Arizona, have said they would not support the “nuclear option.”
Even if the Equality Act fails to pass as a standalone bill, conservative groups fear that congressional Democrats might work to pass it in other ways, specifically by working to include it in budget bills. As J.D. Mesnard of Alliance Defending Freedom explained during a recent webinar on The Equality Act, under the reconciliation process, which is often used to pass budgetary bills, several provisions can get “mashed in there as … part of the negotiation and it doesn’t have the 60-vote threshold.”
While the Equality Act might fail to pass Congress, decisions by the other branches of government have effectively made some of its provisions law already. President Joe Biden, who has made passage of the Equality Act during his first 100 days in office a top priority, signed an executive order shortly after taking office that prohibits discrimination based on sexual orientation and gender identity.
Additionally, the Supreme Court ruled last year that sexual orientation and gender identity are already protected classes under the 1964 Civil Rights Act, which bans employment discrimination on the basis of sex.