The unholy grail of the sexual revolution, the Equality Act, looms as a very real possibility in the foreseeable future. Because of this, it would be good to remind ourselves of just how extreme and comprehensive it is, requiring complicity in sin, destroying religious freedom, and basing law on inherently irrational categories (which LGBT categories are, as they are based on behaviors and inclinations and perceptions of the same).
Given the closely and sharply divided nature of the current cultural conflict, and the ability of Democrats to enact radical legislation in the first two years of Biden’s Presidency with only small majorities in both houses of Congress, it may pass sometime in the next several years. This is particularly true if there is a Democratic victory in 2024, taking both the White House and Congress, which is a very real possibility. The federal same-sex marriage law, passed at the end of 2022, shows that there also may not be a Republican filibuster able to stop it. Additionally, today proponents will claim majority popular support for the bill, although many Americans likely don’t know the specifics. Therefore, we need to be reminded exactly why this terrible piece of legislation is wrong, and what should be the response of faithful Christians if it is enacted. Many specifics can also be found in earlier article series by this writer (here and here).
The proposed Equality Act has gone through quite a number of incarnations since it was first introduced in the mid-1990s as the Employment Nondiscrimination Act (ENDA) and has become more and more intolerant of conscience objection to homosexuality (and now transgenderism) as it has been re-introduced. In the early years, it covered (as the earlier name shows) only employment discrimination and even had exemptions for religious organizations. Since 2015, it has gone under the name Equality Act, it has explicitly excluded religious freedom from all of its very comprehensive provisions, attempting to require acceptance of homosexuality and transgenderism in all of society.
The text of the current bill, H.R. 15, shows that it would exclude faithful Christians, who cannot be complicit in sin, from wide areas of society. Notice that LGBT identifying persons have and always have had the same fundamental constitutional rights that everyone else does. Homosexual behavior and inclination or the claim of transgender status does not exclude one from any part of society under current federal law. Instead the Equality Act would require acceptance, substituting the choice of the state for private choice.
Specific Provisions to Notice
First one needs to notice the greatly expanded scope of public accommodations law. Coverage for the old categories of race, color, national origin, religion and (biological) sex covered commercial establishments (restaurants, hotels and motels, movie theatres, and stores). The Equality Act however covers free and voluntary events and services open to the public, specifically any “stadium or other place of or establishment that provides exhibition, entertainment, recreation, exercise, amusement, public gathering, or public display.” And likewise “any establishment that provides a good, service, or program, including a store, shopping center, online retailer or service provider, salon, bank, gas station, food bank, service or care center, shelter, travel agency, or funeral parlor, or establishment that provides health care, accounting, or legal services.” Another list covers transportation services (although they are presumably “services”).
This pretty much covers the range of public life. Because sexual orientation and gender identity (SOGI) laws, of which the Equality Act would be a national version, are interpreted as prohibiting discrimination against homosexual behavior as well as homosexual persons, the baker/florist/photographer cases of the 2010s will under statutory law be resolved by requiring complicity in homosexual behavior by all merchants in all 50 states, even where there are state Religious Freedom Restoration Acts (RFRAs). Since under the 303 Creative decision earlier this year merchants can now claim free speech against providing their own expression for ideas they disagree with, there exists some protection for them, but reasonably there will be court cases disputing how “expressive” a piece of merchandise or service is.
But the threat to Christian conscience remains grave. The inclusion of “service or care center” and “shelter,” because SOGI laws include transgenderism, would require biological men to be housed in shelters for homeless and abused women (as was attempted in Alaska). Another very important category is “legal services.” Heretofore, lawyers have been free to choose the clients they serve. Will Christian legal service organizations that have defended religious freedom against the LGBT agenda, such as the Alliance Defending Freedom, or First Liberty Institute be required to file suit against Christians because an LGBT identifying individual or group cannot be refused?
Religious foster care and adoption will not be possible if the Equality Act is enacted, since it is clearly a “service,” and thus may not discriminate against homosexuality or transgenderism. By its clear moral message of the normalcy of LGBT behavior and identity, it is likely that couples seeking to adopt or care for a foster child will commonly be required to affirm gender ideology. This will have implication that they will not teach traditional sexual morality to their children and will accept the child’s self-declared gender and proceed on a course of destroying the child’s normal sexual development (“gender transitioning”) if he or she ever once declares such a desire. Similarly, natural families of husband, wife, and their offspring will be at risk of gender transitioning children against the will of their parents. Parents will be at risk of losing their children if they object to gender transitioning (since objecting to transgenderism is “abuse”), or otherwise fall afoul of gender ideology.
Notable in connection with the threat to parental rights is that in the “Findings” section of the bill, (Sec. 2 (7)), the text attacks the “discredited practice” of “conversion therapy” (speech that encourages identification with one’s natural sex and/or discourages attraction to one’s own sex). This is an attack on religious freedom, free speech, and parental rights, since anyone, and especially a child, should be able to consult with others about their life and find guidance. The “finding” in H.R. 15 also encourages the compelled use of self-chosen pronouns, and by the use of the word “conversion,” in the wider political culture encourages a legal attack on evangelism. As with everything else in H.R. 15, this substitutes state judgment for private judgment.
In public education the bill effectively destroys sex, because transgenderism is included as a protected category. But if sex is self-chosen, it has no public meaning. Sex is a crucial matter for older children and teenagers. This only adds to the stress of puberty, and thus the general anxiety of contemporary society. It is girls who lose the most, since girls’ sports may include boys, effectively rendering girls sports meaningless, and safety in restrooms or locker rooms is imperiled because boys can enter girls’ reserved spaces. Gender ideology becomes the doctrine of sex education (which is really viewpoint discrimination), and self-chosen pronouns may be required (which violates free speech).
Religious schools are not directly mentioned in H.R. 15, but they will be greatly affected by the requirement that all federally funded organizations comply with the act. Since the great majority of religious colleges and universities receive student aid, and even federal grants, they will not be able to hold their employees (faculty and others), nor their student bodies to a code of Christian sexual morality, nor have single sex sports teams. While strong free speech doctrine will be helpful in protecting the right to teach Christian doctrine and morality in primary, secondary, and tertiary schools, federal funding might also be used to attempt to limit this with respect to any LGBT issue.
These same federal funding SOGI requirements would also imperil any other religious organization (charity, health institution, or any other religious organization) receiving federal funding. They could not discriminate against homosexuality or transgenderism in employment, or in their services. In particular with respect to medical or other health institutions, either the receipt of federal funds or simply their status as “services” would mean that they would be bound by full SOGI requirements under the Equality Act. This could mean that they would be required to perform sexual anatomy altering surgery or provide hormone treatment (administering hormones of the opposite sex) upon demand, or as discussed below, abortion on demand.
In employment law, as noted above, the old versions of ENDA gave a blanket exemption for religious organizations, but no such exemption exists for the Equality Act. Additionally, the old qualification that civil rights law applied only to organizations with 15 or more employees is abolished; the Equality Act applies to all employment. Of course, the Bostock decision (2020) already extended the employment antidiscrimination requirements of the Civil Rights Act of 1964 to transgenderism, but the Equality Act removes the 15-employee minimum for applicability, and churches and other houses of worship would be bound by this provision, except for clergy or anyone to whom the ministerial exception applies.
The Abolition of Sex
Surely one of the most drastic effects of the Equality Act would be the practical abolition of sex. Because any place open to the public would be bound by SOGI requirements (any place of “public gathering”), all rest rooms would be open to both sexes, all locker rooms, and any other place reserved for one sex would be open to both sexes, upon the declaration that one is a member of the opposite sex from one’s body. This, of course, is a severe threat to the safety of women and girls. For a piece of legislation professing to be motivated in part by a desire for the equality and fair treatment of women, it is a peculiar result to effectively abolish women and their rights and protections.
Indeed, the Equality Act explicitly re-defines the meaning of sex (Sec. 1101 (4)) to refer not to human biology but essentially an inversion of the prohibitions of traditional sexual morality. Biology can certainly be claimed as the justification for one’s sex, but sex is also defined to include “sex stereotype, pregnancy, child-birth, or related medical condition, sexual orientation or gender identity, and sex characteristics, including intersex traits.” Perhaps most importantly, because “child-birth, or related medical condition” is included, abortion now becomes a civil rights issue, and thus refusal to perform an abortion is sex discrimination. This then accomplishes the statutory re-instatement of Roe vs. Wade, which was attempted shortly after the Dobbs decision, which overturned Roe vs. Wade. Of course, it also could mandate that hospitals perform sexual anatomy altering surgery, or give treatments of opposite sex hormones, or even puberty blocking drugs to minors, since refusal of these services amounts to sex discrimination. Effectively, the Equality Act mandates national acceptance of the sexual revolution.
Transgenderism, part of the Equality Act mandate, as this writer and others have noted before, threatens the LGB part of the LGBT coalition, since both homosexuality and bi-sexuality depend on a firm biological meaning of sex. Homosexuality involves using sexual capacity for the opposite of its intension, but requires that the meaning of “same-sex” be fixed by biology, As an example, acceptance of transgenderism means men can claim to be lesbians, and demand acceptance in lesbian or any other female organization (although how far such an organization would be bound by the Equality Act would depend on to what extent it offers a public service or provided a public gathering).
Notable in passing are the provisions for financial credit and jury service. This might be important if there is a religious financial institution that does not wish to serve or lend to an LGBT organization, or in the case of “de-banking” someone based on their LGBT status (a practice now happening against social conservatives). With respect to jury service, people in a jury pool may be selected or excluded from service on a jury for many reasons. The Equality Act would dis-allow exclusion on the basis of claimed LGBT status, which could be highly relevant in a particular case.
Most importantly for Christians and other religious people should be noted the removal of the Religious Freedom Restoration Act of 1993 (RFRA) from any operation of the Equality Act. This degrades religious freedom, which is as is often noted, America’s “first freedom,” the first right mentioned in the Bill of Rights. Sexual liberation is substituted as superior. Sexual morality is fundamental and vital to major world religions, as this writer noted several years ago, It cannot reasonably be excluded from religious freedom. Additionally, as is often noted, RFRA is only a balancing test. It allows courts to weigh how important religious freedom is in a particular case. The standard it provides for overruling religious freedom (a compelling state interest exercised in the least restrictive way) is indeed high (as is appropriate for America’s first and most fundamental freedom), but it does not mandate any outcome in any particular case. The Equality Act, on the other hand, mandates that religious freedom be overruled if it conflicts with homosexuality or transgenderism.
Finally it should be pointed out that the very idea of a “protected class” is inconsistent with freedom, equality, and democracy. It essentially says that widespread public judgment is wrong, and needs to be corrected. Racial inequality is indeed a (constitutional) exception, since the Civil War amendments were enacted to mandate racial equality. Additionally, race is a superficial and immutable characteristic, and reasonably it can be publicly known that adverse judgment (discrimination) based on race is wrong.
But sex, religion, pregnancy, and other characteristics are not superficial. Religion is indeed protected in the Constitution, but it is freedom to practice one’s religion which is guaranteed, not freedom to require the complicity of others in one’s religion. But sexual orientation and gender identity (SOGI) laws are interpreted to require complicity in what is incompatible with religious precepts. Religious antidiscrimination laws seem not to be interpreted to require complicity (and certainly Colorado’s antidiscrimination law was not interpreted to require complicity by a non-believer). The requirement of complicity is now justified by the goal of removing social stigma. But for the 1960s civil rights movement, gaining equal access to goods and services, employment, and housing was the justification for the movement, not social stigma. Beyond that, pain and humiliation simply do not establish injustice. Lack of fidelity to truth and reality do. In that respect, pervasive stigma was a good moral justification for racial integration, but not for the SOGI categories, which are based on wishes, inclination, and behavior. Personal characteristics are not necessarily righteous. Indeed, SOGI categories conflict with reality. We have personal dignity from our status as human beings, not from the lives we lead. To be “non-judgmental” about the conduct of one’s life is really to court anarchy, as transgenderism now makes plain.
A Christian Response
If the Equality Act ever is enacted, the First Amendment should be a defense against at least some of its consequences. Free speech is the strongest legal protection and can be expected to prevail as long as a social interaction can be reasonably construed as the provision of an “expressive” merchandise or service. Beyond that, the greater seriousness with which courts are taking the free exercise clause may also be more protection than it has been in the past. The Supreme Court has so far declined to overturn the Employment Division vs. Smith decision, but if it ever does (and there is certainly sentiment on the court to overturn Smith), the standard of least restrictive means to burden religious liberty can be re-instated as a constitutional standard. It will then be crucial to argue that access to the economy rather than removing social stigma is the justification for civil rights law. There is obviously no least restrictive means if eliminating pain and humiliation at conscience objection to homosexuality or transgenderism is the purpose of civil rights law. On the other hand, even under Smith, it might be argued that attacking religious doctrine concerning homosexuality is the proposed law’s true purpose, thus making it unconstitutional.
But these are all possible legal defenses against the requirement to sin. Faithful Christians may be faced, as they are now already faced in various national, regional, and local jurisdictions, with the requirement to “cause your neighbor to stumble,” (Matt. 18:7-9) contrary to the clear command of Christ. We also have the guidance of Peter and the apostles (Acts 5:27-29), and Daniel’s three friends (Dan. 3:14-18) to noncompliance with the law. Noncompliance will bring penalties, and may or may not finally result in accommodation. But even if we do offend our neighbors or the state, we must not ever offend God, who is the author of righteousness, and with whom our true hope lies.