On February 25, the United States (US) House of Representatives passed the landmark Equality Act (H.R. 5). The legislation now faces a difficult vote in a more evenly divided Senate. The Equality Act—which amends existing civil rights legislation to prohibit discrimination based on sex, sexual orientation, and gender identity—has reignited debate between faith groups and progressive activists over the perceived erosion of religious freedom accompanying the expansion of LGBTQ+ rights. A recent opinion published by the Wall Street Journal boldly claimed that “the Equality Act is at war with reality”. But is it?
WHAT IS GAINED BY ENACTING THE EQUALITY ACT?
Currently, LGBTQ+ Americans are protected on a state-by-state basis, and the lack of federal law granting protection from discrimination has created notable gaps in protection in parts of the country. According to Human Rights Campaign (HRC), there are 192 anti-LGBTQ bills under consideration in state legislatures, 93 of which directly target trans people. In 2021, HRC has already recorded the deaths of 12 transgender and non-binary individuals. The Equality Act (the Act) would provide explicit, consistent protections in fundamental areas of life, such as employment, housing, credit, education, public spaces and services, federally funded programs, and jury service. For the estimated 18 million LGBTQ+ individuals in the US, this would assure the right not to be denied medical care, housing, or other services in the public sphere.
OPPOSITION FROM RELIGIOUS INSTITUTIONS
The Act’s critics argue that passing the legislation would strip religious institutions and faith-based organisations of legal protections and also destroy women’s and girls’ sports. The protections being referenced derive largely from the 1993 Religious Freedom Restoration Act (RFRA), which prohibits the government from burdening a person’s religious practice. The Equality Act explicitly stipulates that the RFRA cannot be used as an exception from the ban on discrimination. Notably, the RFRA was not created with the intention of legalising discrimination or to outweigh others’ rights, although it has since been cited to deny the provision of birth control and prevent non-Christians from fostering or adopting children.
For Christian institutions that mandate a traditional view of sexuality, non-compliance with the Act could lead to losses of federal funding, such as student financial aid. For this reason, some religious leaders and institutions have advocated for a rival bill, the Fairness for All Act, which would provide increased protections for LGBTQ+ individuals in public spaces while providing exemptions for religious institutions—that is, exemptions from the consequences of discrimination and the freedom to strictly enforce anti-LGBTQ policies in their institutions. Ultimately, limited religious exemptions could be added as amendments or addressed in court to determine whether exemptions are warranted for the practice of the faith, or if they are disguising discrimination as religious freedom.
In the Bostock v. Clayton County decision of June 2019, the US Supreme Court ruled that the protections against discrimination on the basis of sex established under the Civil Rights Act 1964 (CRA) also extend to lesbian, gay, and transgender Americans. The Equality Act would continue to comprehensively strengthen protections for LGBTQ+ individuals.
Religious belief and practice are protected areas of human rights enshrined in America’s First Amendment with good reason. For many Americans, their values and spiritual stances are fundamentally and unquestionably tied to their identity and worldview. Should that human right, however, supersede another individual’s lived reality? The aforementioned Wall Street Journal contributor, Margaret Harper McCarthy, claims that the Equality Act “concerns things everyone can see and understand”; namely, that “their mothers are the ones who are nursing them, and their fathers are the ones who are not”. The gender binary, McCarthy argues, is as simple as that: a fact left to Christians to defend, whilst “Congress seeks to outlaw the distinction”. Such an argument fails to recognise the long history of “two-spirit,” intersex, and androgynous people celebrated in Indigenous cultures, or the relaxed attitudes toward sexual orientation and gender identity documented in Africa prior to colonisation, or the lived and honest experiences of millions of LGBTQ+ individuals today. Failure to treat someone the way they wish and formally request to be treated is not religious freedom.
In fact, the Act attempts to strike a balance between religious freedom and civil rights by preserving certain exemptions from the CRA, such as the right for religious groups to discriminate in hiring positions for teaching and preaching. As trans activist Cecilia Gentili wrote in the New York Times: “Some people believe that in respecting my rights, they will lose some of their own. But equality is an endless cake. The more who eat from it, the more there is to share.”
Indeed, a war against reality may be taking place.
It is a war against the reality that the vast majority of Americans support banning discrimination against LGBTQ+ people. A war against the reality that the traditional heteronormative gender binary fails to reflect the lived experience of millions of Americans. A war against the reality that freedom of religion does not equate freedom to discriminate against, deny, or otherwise mistreat those whom you do not understand. It is a war at odds with the reality that members of the LGBTQ+ community are valid, valuable members of society, worthy of the same protected rights to equality and dignity as anyone else.
Laura holds a Master’s degree in International Relations from New York University, with a research focus on human rights, digital communication, and violent extremism. She is a communications consultant for the International Institute for Sustainable Development and currently lives in her hometown of Edmonton, Canada. Views expressed are her own.