When he was running for president, Joe Biden vowed to sign the Equality Act if elected. Now that both the House and the Senate are in the hands of Democrats, odds are that the Equality Act will pass. Why does this concern you?
First, thankfully, odds are still against the bill becoming law. If the legislative filibuster remains, the Equality Act goes nowhere in the Senate. If they somehow convince Senator Manchin to vote to remove the legislative filibuster, then we’re in a different situation. The question would then be whether Senator McConnell can keep all 50 republicans opposed (and early signs are good as Senator Collins has said she now opposes the Equality Act). That would then leave a 50-50 split with VP Harris casting the deciding vote—unless, of course, Senator Manchin broke ranks and opposed the bill.
Second, why is the Equality Act so disconcerting? My most recent short treatment can be found last week in the New York Post. But I’ve been writing about the harms of the Equality Act, and its predecessor the Employment Nondiscrimination Act, since 2013. In books, law review articles, essays, op-eds, white papers, etc. etc. my basic argument has been that it gets the nature of the human person wrong, and by enshrining a false anthropology into law it’ll cause serious harms. (Basic idea being straight from MLK, who was building on Aquinas and Augustine, that for man-made law to be just, it needs to embody the natural law and the eternal law.)
The equality act would take a just law—the Civil Rights Act of 1964—which banned discrimination on the basis of race, and then add “sex, sexual orientation, and gender identity” everywhere that race is protected. It expands the number of private businesses that would now be classified as public accommodations. And it explicitly exempts itself from the Religious Freedom Restoration Act (RFRA). And it’s important to point out that because “sex” isn’t currently a protected class in Title II (public accommodations) or Title VI (federal funding recipients), by adding “sex, sexual orientation, and gender identity” to those titles the only religious liberty protections the Equality Act allows for would be those available to racists.
So the short answer is that the Equality Act treats people and institutions that believe we are created male and female, and that male and female are created for each other, as the legal equivalent of racists. And then all of the negative consequences for privacy and safety in single-sex facilities, for equality and fairness for athletics, for medicine when it comes to gender dysphoria (and abortion, see my NYPost op-ed) follow from that. If you get human nature wrong in law, there are consequences.
Because the vast majority of those consequences are not simply about “religious liberty,” the so-called Fairness for All alternative to the Equality Act isn’t actually fair, at all.
Read it all.
