Why the Equality Act Is More Extreme Than the Bostock Decision
On Thursday, the U.S. House of Representatives will pass the Equality Act. The bill has been portrayed by some activists and the press as legislation that would merely codify the Supreme Court’s recent decision in Bostock v. Clayton County in which Justice Neil Gorsuch — joined by Chief Justice John Roberts and the Court’s liberal bloc — held that the 1964 Civil Rights Act’s prohibition against sex discrimination in employment also prohibited such discrimination on the basis of sexual orientation and “transgender status.”
Many conservatives blasted Gorsuch’s reasoning as faux originalism. Justice Alito and Justice Kavanaugh made the case in separate dissents that no one believed that the original public meaning of the word “sex” in 1964 also meant “sexual orientation” and “transgender status.” Alito wrote that the Bostock decision could have all sorts of troubling implications on a number of issues — from religious liberty to women’s sports and more. Gorsuch countered that those questions weren’t before the Court and would be answered another day.
The Equality Act seeks to answer those questions today — all in the favor of one side.
The first way the Equality Act goes far beyond the Bostock decision is its impact on religious liberty. Justice Gorsuch wrote in Bostock that the Religious Freedom Restoration Act is one important protection for religious liberty. RFRA “prohibits the federal government from substantially burdening a person’s exercise of religion unless it demonstrates that doing so both furthers a compelling governmental interest and represents the least restrictive means of furthering that interest,” Gorsuch wrote. “Because RFRA operates as a kind of super statute, displacing the normal operation of other federal laws, it might supersede Title VII’s commands in appropriate cases.”
But as University of Virginia law professor Douglas Laycock told National Review, the Equality Act “goes very far to stamp out religious exemptions.”
Laycock, a longtime supporter of gay marriage and proponent of enacting a federal gay-rights law, explained that the Equality Act “regulates religious non-profits And then it says that [the Religious Freedom Restoration Act] does not apply to any claim under the Equality Act. This would be the first time Congress has limited the reach of RFRA. This is not a good-faith attempt to reconcile competing interests. It is an attempt by one side to grab all the disputed territory and to crush the other side.”
The second way the Equality Act goes far beyond the Bostock decision is that it adds “sexual orientation” and “transgender status” as classes protected under the 1964 Civil Rights Act’s Title II, which prohibits discrimination at public accommodations. (The Bostock decision didn’t touch federal public-accommodation law because Title II of the 1964 Civil Rights Act did not ban discrimination at public accommodations on the basis of sex.)
The Equality Act also greatly expands the number of businesses that count as “public accommodations” under the Civil Rights Act. It explicitly covers “shelters,” meaning that women fleeing violent men could be required to live in quarters with biological men who identify as women. It also explicitly covers salons, which creates some hair-raising concerns for women who work at such establishments.
But the biggest problem of all is how the Equality Act would affect schools.
The editors of The Economist — not exactly a bastion of social conservatism — recently warned congressional Democrats that the Equality Act “risks discriminating against female Americans” by requiring women and girls to compete against athletes who are biologically male but identify as female.
The Equality Act explicitly states that “(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.” As David French wrote in these pages in 2015: “Exposing a penis to girls in a public high school is generally considered an act of sexual harassment, not part of the sexual revolution.”
Andrew Sullivan has observed that President Biden’s sweeping LGBT executive order will create many of the same problems for shelters, schools (whenever they all open back up), and women’s sports. But it’s much easier to rescind an executive order than repeal a statute.
The third way the Equality Act goes far beyond the Bostock decision is that it could mandate taxpayer-funding of elective abortion and violate the conscience rights of medical providers who oppose abortion. As Alexandra DeSanctis and Richard Doerflinger have explained, the Equality Act bans discrimination on the basis of “pregnancy, childbirth, or a related medical condition,” and courts and the federal government have interpreted “related medical condition” to mean “abortion.” It is, therefore, quite conceivable that courts could soon interpret the Equality Act as requiring private insurance and government health-care programs to fund abortion.
The Bostock decision will certainly create its own controversies. For example, if a third-grade public-school teacher named Mr. Smith comes back from Christmas vacation wearing a dress and identifies as Ms. Smith, it now appears to be illegal to move that teacher to work in a high school, according to the Supreme Court. But Bostock largely accomplished what advocates of an LGBT anti-discrimination law wanted, and there is no chance of it being overturned even with Amy Coney Barrett on the Court.
There’s no denying the fact that the Equality Act reaches far beyond Bostock. And that’s why the bill is almost certainly dead on arrival in the Senate, where it will be subject to a 60-vote threshold. West Virginia senator Joe Manchin was the only Democrat in Congress to oppose the Equality Act in 2019. Maine’s Susan Collins, the only Republican senator who co-sponsored the Equality Act in 2019, told the Washington Blade this week that she isn’t co-sponsoring the bill in 2021 because there “were certain provisions of the Equality Act which needed revision.” Collins didn’t say if she’d ultimately vote for the bill, but even if she did it seems impossible there would be 60 votes for the bill in the Senate.