Biden Promised an LGBT Bill. Joe Manchin Is Poised To Kill It.

President Joe Biden pledged to sign a bill that would ban discrimination based on sexual orientation and gender identity within his first 100 days. But 71 days into the Biden presidency, the prospects of a signing ceremony for the landmark legislation are starting to look like dreams.

When it was adopted by Congress in 1972, the Equal Rights Amendment appeared to most observers as a lock for swift ratification. It was widely popular among the general public and had cross-party support even during an era of increasing political polarization, plus the coordinated backing of dozens of women’s organizations that had labored for decades in order to make it the law of the land.

Five decades later, the Equal Rights Amendment is still ghost legislation, its specter haunting civil rights activists who feel that its critical protections were thwarted by a labyrinthine legislative process seemingly constructed for the purpose of halting progress. Now, supporters of another landmark piece of civil rights legislation—backed by nearly 70 percent of Americans, and recently passed with a bipartisan majority in the House of Representatives after decades of near-misses—are growing increasingly concerned that it could meet the same fate.

The Equality Act, which would protect lesbian, gay, bisexual and transgender Americans from discrimination in a number of public accommodations, is set to become the latest example of GOP obstruction in the Senate, where Democrats need 60 votes to overcome the filibuster.

“People care about, and want to see, real civil rights extended to LGBTQ folks,” said Kierra Johnson, executive director of the National LGBTQ Task Force. “If it becomes clear that the filibuster, as it stands, is insufficient and effectively prevents the ability to further civil rights and protect our most vulnerable, then we’re going to be all-in in supporting a strategy of reform.”

The Equality Act has been introduced in some form or another in nearly every congressional session since the 1970s. But even with the legislation facing its best odds of passage since it was first introduced, even with a supportive president and a Democratic Congress, even with concessions on language regarding religious freedom that backers had been prepared to include in the bill’s final form, the act’s backers can’t seem to find a way to 60 votes.

“The absolute best-case, Fantasy Football scenario would include backing from Susan Collins, Lisa Murkowski, Rob Portman, John Thune, Richard Shelby, Mitt Romney, and maybe Dan Sullivan if we promised to build a spaceport in Anchorage,” one LGBTQ movement leader told The Daily Beast. “But that still leaves us three short of passage—and that’s still assuming that Manchin even backs it, which I don’t think he will.”

A little more than two months into Biden’s term, Sen. Joe Manchin (D-WV) has taken on the role of perpetual fly in the ointment of progressive legislation. The Equality Act is no exception.

The West Virginia senator publicly expressed reservations about the Equality Act during the last Congress in 2019, saying he was not convinced that the act provided “sufficient guidance to the local officials who will be responsible for implementing it, particularly with respect to students transitioning between genders in public schools.”

In private, according to those familiar, Manchin has been equally skeptical this time around, citing a massive call-in campaign organized by conservative groups like the Heritage Foundation intended to sink the bill. Manchin told one co-sponsor of the Equality Act that the calls to his office were opposed to the legislation “a thousand to one.”

Without Manchin’s support, charting the path to 60 votes is functionally impossible, given the Senate’s current makeup. If the Equality Act were to fail even with Democratic majorities in both chambers and a strong supporter in the White House, backers fear that LGBTQ anti-discrimination protections on the federal level could end up the modern equivalent of the Equal Rights Amendment: widely popular, but thwarted by the concerted actions of its strongest opponents and an antiquated legislative process.

Manchin’s office did not respond to a request for comment about that remark, nor would they comment on his current stance on the legislation. But many of the bill’s backers, including lead sponsor Sen. Jeff Merkley (D-OR), are hoping that the Equality Act won’t be doomed by the filibuster—even if they’re already beginning to indicate that the bill’s failure may be the turning point in a full intra-party battle over the obstacle.

“Given the urgency of the Equality Act, the fact that conversations within the caucus about filibuster reform are still ongoing, and the past Republican support for bills like the Employment Non-Discrimination Act, Sen. Merkley is focused right now on meeting with his Republican colleagues and pushing to find 60 votes to get full equality into law as soon as possible,” a Merkley spokesperson told The Daily Beast, noting that the senator “has long taken the position that we need to fix the broken Senate and restore its ability to pass important legislation by simple majority.”

Sen. Tammy Baldwin (D-WI), the Senate’s first out member and a longtime co-sponsor, echoed that sentiment.

“My goal in the Senate is to get things done for the people of Wisconsin,” Baldwin said in a tweeted statement. “If that takes reforming the filibuster, I’m for that. If it takes getting rid of the filibuster, I’m for that too. We can’t let obstructionists block us from delivering results for the American people.”

The White House has inched closer toward backing major filibuster reform in the face of obstruction of its ambitious legislative agenda—albeit while leaving the process intact in some way, like replacing it with a traditional “talking filibuster” à la Jimmy Stewart in Mr. Smith Goes to Washington.

“Between 1917 and 1971, the filibuster was used about 58 times,” White House press secretary Jen Psaki told reporters last week. “Last year alone, it was used five times that many. It is not being used for the intended purpose—it is being abused.”

But ending the filibuster, like the Equality Act itself, requires Manchin’s participation—and the West Virginia senator has made his feelings on that crystal clear.

“Never!” Manchin shouted at a reporter last month, when asked if he would support ending the filibuster. “Jesus Christ, what don’t you understand about ‘never’?!”

Read more at The Daily Beast.

Get our top stories in your inbox every day. Sign up now!

Daily Beast Membership: Beast Inside goes deeper on the stories that matter to you. Learn more.