The wide-reaching Equality Act championed by Democrats would put the hiring practices of faith-based organizations in “jeopardy” and will create additional religious freedom concerns for Christian schools, churches and ministries, a prominent legal nonprofit argues.
Alliance Defending Freedom officials last Friday detailed the implications of the Equality Act, legislation backed by President Joe Biden that would codify discrimination protections based on sexual orientation and gender identity into federal law.
The legal organization, which has won several religious freedom cases before the U.S. Supreme Court in recent years, warned those watching an online webinar that the Equality Act could widen the definition of public accommodation in a way that could put faith-based institutions at risk.
Senior Counsel Gregory Baylor said that the bill, which passed the Democrat-controlled House in 2019, “dramatically expands” the scope of what constitutes a place of public accommodation.
“Under the law we have right now, it’s actually not that many entities: it’s restaurants, it’s hotels, it’s means of transportation,” he explained.
According to Baylor, supporters of the Equality Act want to expand the definition of public accommodation to include a “much, much broader category of organizations,” including “nonprofit entities like shelters and food banks.”
“The way that they’ve written it doesn’t rule out the possibility that a religious school or even a church in some of its functions might be deemed to be a place of public accommodation,” he continued.
Baylor explained that the legislation, which stalled in the Republican-controlled Senate last Congress, “creates lots of uncertainty” about the requirements surrounding organizations’ hiring processes.
Noting that many religious organizations have policies that reflect their beliefs about marriage, sexual morality and distinction between the sexes, Baylor warned that the Equality Act “puts all of those in jeopardy.”
“There is some concern that even a church could be deemed a place of public accommodation” if it opens its facilities “for an event that’s open to the public,” Baylor stated.
He argued that the Equality Act might consider a religious school a place of public accommodation.
“If a law banning SOGI discrimination applies to a school as a place of public accommodation, it would be very difficult to maintain standards for admission of students (and) for conduct codes for students,” he explained.
Additionally, the Equality Act seeks to “outlaw discrimination on the basis of sexual orientation and gender identity in the employment setting.”
In 2020, the U.S. Supreme Court ruled in Bostock v. Clayton County that a Michigan-based Christian-owned funeral home was wrong in firing a transgender employee after he transitioned to female.
Baylor stressed that “the Equality Act would impose … a ban on … SOGI discrimination in housing,” including college dormitories.
“It’s probably the case that dorms are covered by the Fair Housing Act’s ban on discrimination and if that’s the case, think of schools that have single-sex dormitories, think of Christian colleges that are unwilling to place men who identify as women in women’s dormitories,” Baylor added.
He also said that under the Equality Act, churches might be “required to allow men who identify as women to use the women’s restrooms.”
Baylor also warned that sex-separated dormitories might be in jeopardy under the Equality Act. He suggested that schools might be required to let men who identify as women live in female-only dormitories and use female-only private spaces.
According to Baylor, the Equality Act could also impact “the law that governs recipients of federal financial assistance.”
“There’s an enormous number of entities that get money from the federal government,” Baylor said. “Every public educational institution gets money from the federal government, almost all private institutions of higher education get money from the federal government and this, of course, is coming, in most cases, through student aid that students receive from the federal government” to help pay for their education.
Baylor explained that even some private, religious K-12 schools are recipients of federal financial assistance.
“Thus, if the Equality Act passes, [they] could be subject to this ban on discrimination,” he continued.
Baylor remarked that the “ban on discrimination” would include “more unexpected things” like requiring employers to use a transgender person’s preferred pronouns regardless of “whether that violates their conscience or not.”
“They also say that an employer, in order to comply with the ban … on SOGI discrimination in employment, must include in their health plans things that they might object to like cross-sex hormones, puberty blockers for children and sex reassignment surgery,” Baylor stated.
According to the lawyer, laws have “been interpreted to require … giving access to men who identify as women into women’s private spaces like locker rooms, changing rooms, dressing rooms and things of that nature.” He further noted that any school that receives federal funding could be forced “to allow men who identify as women to play on sports teams.”
Baylor warned that religious institutions of higher education that do not receive any funds from the federal government could still “get hit from all different parts of the Equality Act.”
If schools are determined to be places of public accommodation, “your admissions practices, your student conduct codes would now become suspect under the Equality Act.”
“There’s no silver bullet to getting around this if it becomes law,” Baylor stressed.
Although the Equality Act failed to become law in the last Congress, the bill will likely come up for a vote again this year, as Democrats have taken complete control of the legislature and Biden has made passage of the bill a top legislative priority.
In contrast to most bans on discrimination based on sexual orientation and gender identity at the state level, the Equality Act does not include “generous religious exemptions.”
According to Baylor, “the law would actually take away from religious people and religious organizations the best legal, religious liberty argument that they have.”
“That’s under a statute from 1993 called the Religious Freedom Restoration Act,” he said.
ADF Vice President of Government Relations J.D. Mesnard said that many cities or states have sexual orientation and gender identity laws on the books.
“This legislation is generally far more extreme than what’s out there,” Mesnard said. “This legislation, in fact, will reduce exemptions that might exist in some of these state-level or municipal SOGI laws and that’s what makes it all the more a threat.”
Baylor predicted that those seeking to file lawsuits alleging discrimination based on sexual orientation or gender identity could choose to sue under the Equality Act rather than any equivalent law at the state level because of the absence of the religious exemption.
He said a lack of religious freedom exemption would give them “fewer hurdles to jump through.”
Discussing the congressional landscape, Mesnard highlighted that Democrats have a narrow 50-50 majority in the Senate, with Vice President Kamala Harris casting the tie-breaking vote.
Although Senate rules require 60 votes to pass most legislation, Democrats have discussed abolishing the filibuster rule to enable legislation to pass with a simple majority. Should that happen, the passage of the Equality Act would become much more likely.
Mesnard warned that even if the Equality Act fails to pass as a standalone bill, “there’s a lot of potential for pieces of it, perhaps pretty significant pieces of it, being included in other bills, especially budget bills.”
He mentioned that under the reconciliation process, a bunch of provisions could get “mashed in there as … part of the negotiation and it doesn’t have the 60-vote threshold.” Under the reconciliation process, bills only need a simple majority to pass.