Battle over the Equality Act highlights the agonising pace of progress for LGBT+ Americans

Bill to ban discrimination based on sex, sexual orientation, and sexual identity would need 60 votes to pass the Senate

Griffin Connolly
Wednesday 17 March 2021 22:03
Trans teenage girl implores Congress to pass Equality Act
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When the US House of Representatives passed what Democrats have termed the “Equality Act” last month, it was apparent based on the ensuing alarm-sounding from Republicans that it stood no chance of passing the evenly split Senate.

Even if all 50 Democratic and Democratic-caucusing senators voted in favour of the bill, it would still need the backing of at least 10 Republicans to clear the upper chamber’s traditional 60-vote threshold for final passage.

That will not be happening.

That much is clear, based on remarks from Republicans on the Senate Judiciary Committee who participated in Wednesday’s hearing on the bill that would ban discrimination based on sex, sexual orientation and gender identity.

“We all agree that everyone should be treated with dignity and respect, regardless of race, sex, gender identity, religion, politics, and probably a lot of other categories that you can name,” Senator Chuck Grassley of Iowa, the top Republican on that panel, said in his opening statement on Wednesday.

“We’re all human beings and need to treat each other with kindness and compassion. And for some of you it may be sentimental for me to say that my guide is from the Bible — love God, that first law. The second law, love your neighbour as yourself. I question whether that is what this bill truly does. I strongly suspect that it actually would dictate what women, girls, schools, churches, doctors, and others must believe,” Mr Grassley said.

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But Wednesday’s hearing was remarkable for the very fact that it was being held, LGBT+ rights advocates have pointed out.

One of the Democratic witnesses was 16-year-old Stella Keating of Washington state, a high school sophomore who urged lawmakers to pass the Equality Act so transgender children and teenagers such as herself could inherit a safer future with more opportunities.

In Stella’s testimony, she pushed back against the stigma that transgender minors are misguided or pushed into making life-altering decisions by ideologically radical doctors and therapists.

“I am here before you today, representing the hundreds of thousands of kids just like me who are supported and loved by their family, friends and communities across the country,” she said.

Other trans activists applauded Stella’s courage and resilience to speak before a panel of senators nearly half of whom referred throughout the hearing to transgender girls and women as “biological men”.

“When I was 16 years old, I was closeted and terrified, lacking even the language to describe myself as transgender,” Gillian Branstetter, who works for the National Women’s Law Center, tweeted before Wednesday’s hearing. “Today, a trans 16-year-old will stand up against prejudice and ignorance in the US Senate. No matter what happens today, that progress can’t be taken from us.”

Two steps forward, one step back

With Democrats controlling committee gavels and floor action, they can set the agenda for what issues receive congressionally-sanctioned hearings and what bills receive votes on the Senate floor.

Those hearings and votes in turn generate incalculable publicity and discourse, shining a spotlight on issues that otherwise might not seep as deeply into the public consciousness.

Holding a hearing on LGBT+ rights and forcing Republicans to vote down a related bill is obviously not even on the same plane of importance as actually passing such a bill.

But progressive movements are frustrating. They take time.

Social conservatives — perhaps the most vital constituency for Republican leaders in Washington — believe the Equality Act’s extension of anti-discrimination laws to LGBT+ Americans would undermine religious freedom by forcing doctors and wedding planners and religious organisations to serve or employ people whose sexual identities or orientation are fundamentally at odds with their religious beliefs.

They have also argued that allowing trans girls and women to compete in women’s athletics would come at the cost of their cisgender counterparts, putting them at a competitive disadvantage given differences in hormones and musculature.

Hardline conservatives in Congress have also claimed the Equality Act would put women and girls in danger from male predators pretending to be transgender, allowing men to haunt women’s bathrooms, locker rooms, and other private spaces. (The Equality Act does not remove sexual harassment and molestation crimes from the US criminal code, regardless of whether a suspect pretends to be transgender or not.)

Just three Republican congressmen – John Katko and Tom Reed of New York as well as Brian Fitzpatrick of Pennsylvania – voted with all 221 Democrats to pass the bill in the House last month.

So far this Congress, no GOP senators have endorsed the bill.

What the bill does

The Equality Act is Democrats’ attempt to bake into the legislative code what the Supreme Court decided in the landmark Bostock v Clayton County case in 2020: the 1964 Civil Rights Act’s language protecting employees and clients from discrimination based on “sex” extends to gay, lesbian, and transgender people.

Combined with several state-enacted anti-discrimination laws, the Supreme Court’s broad definition of sex-based discrimination to cover sexual orientation and gender identity – promulgated last year by a 6-3 majority in which Chief Justice John Roberts and Trump-appointed Justice Neil Gorsuch joined the court’s four liberal justices – has offered a broad shield for LGBT+ Americans. But Supreme Court decisions are not statute and can be reversed in future cases.

Liberal activists have also argued that while the Supreme Court’s Bostock v Clayton County decision protected LGBT+ Americans from workplace discrimination, there are still gaps in anti-discrimination laws outside of employment.

“In 29 states, Americans can still be evicted, be thrown out of a restaurant, or be denied a loan because of who they are or whom they love,” Senator Jeff Merkley said in a joint statement with Congressman David Cicilline last month upon their introduction of the Equality Act.

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