Prohibition of Discrimination on the Basis of Sexual Orientation, Gender Identify and Religious Preferences

On February 18, 2021, House of Representatives (HR) bill #5--a bill to “prohibit discrimination on the basis of sex, gender identity, and sexual orientation, and for other purposes” was introduced.  Known as the “Equality Act,” the bill purports to:

“…clarify, confirm, and create greater consistency in the protections and remedies against discrimination on the basis of all covered characteristics and to provide guidance and notice to individuals, organizations, corporations, and agencies regarding their obligations under the law.”

The bill amends various provisions within the Civil Rights Act of 1964, the Government Employee Rights Act of 1991, the Civil Service Reform Act of 1978, the Religious Freedom Restoration Act of 1993, the Fair Housing Act, and others, mainly to expand the definition of “sex” for purposes of defining new protected classes and identifying what acts are prohibited on the basis of “sex.”.  For example,

• The term “sex” is defined to include sexual orientation and gender identity.  The term also includes: sex stereotype, pregnancy, childbirth, or a related medical condition, as well as sex characteristics, including intersex traits.
  
  
• The term “sexual orientation” is defined to include homosexuality, heterosexuality, or bisexuality.
  
  
• The term “gender identity” means the gender-related identity, appearance, mannerisms, or other gender-related characteristics of an individual, regardless of the individual’s designated sex at birth.

The Equality Act prohibits sex discrimination (including sexual orientation discrimination and gender identity discrimination) in: public accommodations, public facilities, public education, private and public employment, housing, health care, obtaining credit, and on jury selections.  With respect to gender identity, an individual shall not be denied access to a shared facility, including a restroom, a locker room, and a dressing room, that is in accordance with the individual's gender identity.

The Equality Act affects Title IX in another way under the Education Amendments Act of 1972.  This Act prohibits sex-based discrimination, such as in athletics, in any school or other education program that receives federal money.

A timeline on how we got here:

• The Obama administration issued guidance instructing public schools to ensure that “all students, including transgender students, or students who do not conform to sex stereotypes, are protected from sex-based discrimination under Title IX.” 
• The Trump Administration rolled back these policies, contending that the rights of cisgender women were infringed upon by transgender women.  (A “cisgender” woman is a woman who identifies with her gender at birth.)
• An August 2020 opinion by the United States Court of Appeals for the Eleventh Circuit affirmed a lower court ruling in Adams v. The School Board of St. Johns County, Florida, which held that discrimination on the basis of gender identity is discrimination "on the basis of sex" and is, therefore, prohibited under Title IX and the Equal Protection Clause of the 14th Amendment to the US Constitution.
• In December 2020, a Republican and a Democrat introduced the "Protect Women in Sports" Act.  It failed to advance.
• In January 2021, President Biden issued an executive order compelling federally-funded institutions to allow biological males who identify as female to be admitted to women’s sports programs and locker rooms.
• Within a day or two of Biden’s executive order, Representative Steube (R-FL) introduced “The Protection of Women and Girls in Sports Act”.  He is quoted as stating, “[t]hese unfair policies discount the hard work and determination put in by our female athletes and give biological male athletes an unfair advantage in joining teams, setting records and earning scholarships.”

But this is not the end of what the Equality Act does! 

It also essentially repeals “The Religious Freedom Restoration Act (RFRA) of 1993”.  Under the RFRA, a religious organization has the right, within certain limits, to claim that a particular activity or belief is against the tenets of its religion, and as a result, may legitimately refuse to engage in the activity or adopt the belief.  Section 9 of the Equality Act prohibits religious institutions and organizations from claiming and using this defense. Examples that come to mind, include refusing to marry a gay couple because the religious institution believes that marriage is only between a man and a woman, or refusing to allow a male employee teaching in a religious day-care class to show up the next day as a woman.  Both of these examples would result in a violation of the Equality Act, if this bill is enacted.  In the end, the only way to look at this is:  Our 1st Amendment right to freedom of religion takes a backseat to sexual orientation and gender identity politics in the practice of that religion.  

And last, according to “Liberty Counsel,” the Equality Act’s provision addressing “pregnancy, childbirth, or a related medical condition not receiving less favorable treatment than other physical conditions” means that all health care providers and hospitals, could/would be required to provide abortion on demand.

Update:  The Equality Act passed the House on Friday, February 25, 2021.  It will now be taken up for consideration by the Senate.