The Equality Act.

It's a divisive piece of legislation.
Isaac Saul Feb 25, 2021
I’m Isaac Saul, and you’re reading Tangle: an independent, ad-free, subscriber-supported politics newsletter that summarizes the best arguments from across the political spectrum — then “my take.” You can can reach me anytime by replying to this email. If someone forwarded you this email, they’re asking you to sign up. You can do that by clicking here.

Today’s read: 13 minutes.

We’re covering The Equality Act. This is a really complex issue, and so we’ve skipped today’s reader question to give it extra space. Still, we’re just scratching the surface. We’ve also got some very interesting numbers about political priorities and a few quick hits you’ll need to keep an eye on.

Photo: Ted Eytan

Quick hits.

  1. The White House says Johnson & Johnson will have 3 million to 4 million doses of its vaccine for distribution by next week. The White House is also planning to send 25 million masks to underserved Americans across the country. (USA Today)
  2. President Biden, facing resistance to his $1.9 trillion coronavirus bill in Congress, is now courting Republican governors across the country for support. (The Washington Post, subscription)
  3. House Republicans are urging the Department of Health and Human Services to investigate New York Gov. Andrew Cuomo’s alleged cover-up of nursing home deaths. Cuomo is separately facing allegations of sexual harassment. (Fox News)
  4. New U.S. jobless claims fell to 730,000 last week, still well above the pre-pandemic record but down 111,000 from the previous week. An estimated 19 million Americans were receiving unemployment benefits the week of Feb. 6th. (Politico)
  5. New coronavirus cases fell by 20% last week, continuing their sharp decline over the past few weeks, and are now at their pre-Thanksgiving levels. (Axios)
  6. BONUS: A New York prosecutor obtained millions of pages of Trump’s tax documents after a Supreme Court ruling against the former president. (Associated Press)

What D.C. is talking about.

The Equality Act. This week, the House of Representatives is set to vote on the Equality Act, a bill that would make it illegal to discriminate against people based on their gender identity or sexual orientation.

You probably remember last year when the Supreme Court ruled on Bostock v. Clayton County, declaring that the protections of the 1964 Civil Rights Act also apply to lesbian, gay and transgender Americans (we covered that in Tangle here). The court ruled that treating a man and a woman who are both in a relationship with a man differently for the same behavior amounts to sexual discrimination, which is protected under the Civil Rights Act.

The Equality Act is Congress’s attempt to enshrine that ruling into law, and then expand the areas where it applies. Instead of tying the issue to sex, the Equality Act would apply those protections explicitly to matters of gender identity and sexual orientation. It would also expand them to cover “public accommodations,” which include things like retail stores or private establishments. This is notable, as the Civil Rights Act covers discrimination in employment and housing, but doesn’t expand into public accommodations (which this bill expands upon to include online retailers and transportation providers, meaning it also broadens what the Civil Rights Act would cover).

Finally, the Equality Act includes language that will supersede the Religious Freedom Restoration Act (RFRA). The RFRA is a 1993 law that sets a very high bar for the government to defend laws if people argue those laws infringe upon religious freedom.

President Biden promised to sign a version of the bill into law in his first 100 days in Congress, saying “Every person should be treated with dignity and respect, and this bill represents a critical step toward ensuring that America lives up to our foundational values of equality and freedom for all.” Still, it faces a tough path to approval in the Senate. Sen. Susan Collins (R-ME) was the lone Republican to sponsor the bill, but backed off her support when she said revisions she wanted were not made. 10 Republican votes would be needed for the bill to become law.

Today, we’ll take a look at how support and opposition are lining up for and against the bill.


What the left is saying.

The left is supportive of the legislation, arguing that it’s long past time to have explicit protections for these groups.

The Washington Post editorial board said “it remains legal to discriminate against LGBTQ people in a large number of states in an astonishing variety of circumstances.

“Though many states have anti-discrimination laws, some lack comprehensive policies, and some offer few protections at all… it is legal in 27 states to deny people housing based on their LGBTQ status, while 31 states fail to bar discrimination in education and 41 allow discrimination in jury service.

“Passing such an act would not only prevent LGBTQ people from being denied essential services based on prejudice; it would also send a message to the rest of the world. Much of the planet remains a dangerous place for LGBTQ people, who face official retribution if they dare to be themselves in public. It has taken time for U.S. democracy to grow into the notion that discrimination based on innate characteristics is particularly abhorrent.”

Ryan Thoreson wrote that America “still needs the Equality Act.”

“While courts and federal agencies increasingly endorse inclusive interpretations of sex discrimination, these are no substitute for an explicit nondiscrimination law protecting LGBT people.

“Moreover, even inclusive interpretations of sex discrimination provisions leave LGBT people without protection in some circumstances. Existing civil rights laws regarding public accommodations only prohibit discrimination on the grounds of race, color, religion or national origin — not sex. Without the Equality Act, LGBT people have little recourse even when they experience blatant discrimination in a business that is open to the public.

“In 2021, that leaves LGBT Americans with a patchwork of protections that can be unclear and unreliable — and that leave people vulnerable to humiliation and rejection. While recent advances are important, judicial interpretations and agency rulemaking cannot substitute for clear, comprehensive and durable protections under federal law.”

In the University Star, Delilah Alvarado argued that in sports, trans athletes are not the problem; they are damned if they do and damned if they don’t. Alvarado noted that some biological women with high testosterone levels are now forced to suppress those levels to compete, while some trans boys who want to compete with boys are forced to compete with girls.

“Women are the constant target, whether they are getting the beating or whether they have to prove they do not have an advantage,” Alvarado wrote. “Cisgendered women have faced a lot of scrutiny for just seeming more masculine than average. But if an apparent trans male wants to compete with men, it is not always allowed.

“Hormone tests need to be less invasive to cisgendered women, but able enough to prove that a trans women [sic] can compete on the same level,” she added. “Trans women and men must be able to show they can compete in the division they want, but they should be provided with concise rules to follow. Athletic organizations need to reevaluate the rules for competition and find a balance on inclusivity. Remaining unclear with their guidelines has led to discrimination toward women in the sport and that is unacceptable.”


What the right is saying.

The right is generally opposed to the bill over concerns about the threat to religious freedom and the impact the bill would have on women’s spaces.

In Newsweek, Mary Rice Hasson argued that the Equality Act “makes no mention of what sex actually is: the unchangeable reality that a person is either ‘male’ or ‘female’ (intersex conditions are disorders of sexual development, not a different sex).”

“Proponents of the Equality Act say it simply extends the logic of the Supreme Court's decision in Bostock v. Clayton County, which held that Title VII's prohibition of discrimination ‘because of...sex’ also prohibits discrimination because of sexual orientation and transgender status,” she said. “That's a deceptive argument. The Bostock Court's premise in interpreting Title VII was that ‘sex...refer[s] only to biological distinctions between male and female’ and, ‘but for’ the ‘sex’ of each plaintiff, there would have been no discrimination.

“Unlike the Bostock decision, the Equality Act redefines ‘sex’ with no reference to ‘biological distinctions between male and female.’ Indeed, by defining ‘sex’ to include ‘gender identity’—in turn defined by characteristics ‘regardless of...sex’—the Equality Act cements into the law the ideological belief that who we are is self-defined and has nothing to do with our bodies' biology. Sex does not matter.”

In NBC News, Rabbi Avi Shafran said the bill threatens religious freedom.

“Specifically, it would override the 1993 Religious Freedom Restoration Act, which gives people a way to challenge government requirements that they feel impinge on their religious rights,” he wrote. “The religious freedom act was needed because of a Supreme Court ruling in 1990 that said First Amendment protections for religion couldn't be invoked to challenge a law if the law itself wasn't intended to specifically target religion (e.g., a measure like the Equality Act).

“Without the ability to even appeal for those rights, the Equality Act would put religious Americans in unconscionable positions,” he added. For instance, religious hospitals and insurers could be coerced to violate their religious convictions by being required to offer gender transition therapies and to perform gender-transition operations. Faith-based adoption agencies could be forced to abandon their religious principles and place children entrusted to them with same-sex or transgender couples. In an insult to the religious concept of modesty, dressing room facilities and other traditionally sex-specific spaces could have to be open to any and all. Bathrooms and showers could well become places of embarrassment and fear for many.”

In the Wall Street Journal, Inez F. Stepman argued that the Equality Act “makes women unequal.”

“The Equality Act would threaten the existence of women’s prisons, public-school girls’ locker rooms, and women’s and girls’ sports teams,” she wrote. “It would limit freedom of speech, freedom of association, accurate data collection, and scientific inquiry. It would threaten the rights of physicians who doubt the wisdom of performing life-changing, reproduction-limiting procedures, and parents who seek to protect their minor children from such treatment.

“This isn’t hyperbole. Similar state laws have already resulted in such harm. In California, Catholic hospitals have faced lawsuits for declining to perform life-altering ‘gender affirmation’ surgery in September 2016. In Connecticut, two biologically male athletes won a combined 15 girls state championship races, allegedly taking opportunities for further competition and scholarships from female runners in June 2019. Alaska’s Equal Rights Commission opened an investigation into a women’s shelter after it turned away a biological male in September 2019. H.R. 5 would impose the most extreme form of these laws on the whole country.”


My take.

I should preface everything I’m about to say by noting that this is one of the more complex and difficult issues to write about, largely because both the right and the left are good at talking past each other to stake out a moral high ground. I’m also very interested to hear perspectives from my readers, especially if you are trans, religious, or work in the advocacy and law space on either side of this. Don’t hesitate to write in.

First, I am inherently biased to the left’s position. I have a lot of friends in the LGBTQ community who have a personal stake in this legislation, and it’s clear to me we need something. An estimated 1.4 million Americans identify as transgender, and 5.6% of the adult population identifies as LGBTQ. Practically speaking, that means there are around 10 million Americans openly under this umbrella, millions of whom are still living in states where they have little or no recourse if they are discriminated against in ways we deem unacceptable for religious minorities or people of color. It’s unjust and un-American not to protect these gay, transgender and queer Americans. Full-stop. It’s also great to see Congress actually producing and debating legislation, not just fighting this stuff in court based on 50-year-old bills.

I’m also, so far, skeptical of the most prominent arguments being made by the right. Nearly all of them center around the threat to women, specifically trans women operating in spaces like women’s shelters, prisons or sports. So I’m going to try to focus on those.

The discourse on the right often describes these scenarios as if a man wearing a dress is going to simply walk into a women’s shelter and start sexually assaulting people. It’s absurd, offensive, and always reads to me like a continuous chain of assumptions and ignorance to get to the worst-case-scenarios. The framework often illustrates how little exposure many Americans actually have to transgender people, even now.

In almost all these cases, the point is that we’re trying to solve for the opposite scenario to the one that the right constructs: it’s trans women and trans men who are far, far more likely to be the victims of assault, violence, and hate than the perpetrators of it. What happens to a trans woman who, by every societal framework, looks, acts and appears like a woman but is then forced into a men’s shelter? Isn’t she at a much higher risk than a group of women in a shelter who are joined by a single trans woman?

Similarly, the general argument also seems to center on an assumption of some sexual deviancy merely by opening the doors of bathrooms or locker rooms to trans women. Which, again, strikes me both as absurd and offensive, but in this case is also hypocritical. This argument seems to most often come from the religious right, where the greatest threat to women or young boys and girls is not trans people but straight, cisgender men, specifically religious leaders, who have a long and storied history of sexual assault. If we must not ignore the reality that most people are born male or female, we must also not ignore the reality that every single study, statistic and piece of evidence we have indicates biological men are a far greater threat to these groups than are trans women.

And that’s not a pot shot at the Catholic Church. I’m a semi-observant Jew and I have spent a lot of time in religious and Orthodox Jewish spaces that I love dearly. It’s a problem there, too. Just as it’s a problem in Islamic schools, in the Church of Latter-Day Saints, in Scientology, and in basically every other religious institution in America. Again, the entire construct seems to be obscuring a larger problem we should be trying to solve.

All this is to say: it’s still not entirely clear to me what practical negative implication this bill has for straight, cisgender women. In her Newsweek article, Hasson argues that women’s lives were saved when medicine stopped treating the male body as the default — noting that heart attack symptoms in males are different than in females. This is true. But she doesn’t ever connect the dots as to how this bill would undo or damage that. She just says it as if those advancements are going to be reversed now. Doctors aren’t going to suddenly start treating women like they have male genitalia if they don’t. It’s a sort of fear-mongering threat with no actual conclusion. Again: I’m trying to understand, but I just don’t see it.

I also don’t buy the argument that LGBTQ people are trying to redefine sex, because it’s LGBTQ people who are best at making the distinction between sex (a biological identifier) and gender (a social construct and identity). Most people who operate in spaces where LGBTQ people exist openly already know that, which is part of what undermines the right’s argument here. What Democrats appear to be doing is trying to make specific carve-outs for gender identity and sexual orientation and adding gender identity into the umbrella of sex — not superseding it. To put it into progressive terminology: that means straight cisgender women, trans women, and gay women will all enjoy the same protections and rights. It doesn’t mean trans women will be prioritized over cisgender women.

All this being said, there are plenty of extremely complex aspects of this. One I’m particularly sensitive to is the impact it could have on women’s sports. I’ve participated in and observed competitive sports my whole life. I am a sports fanatic, and I got my journalism start as a sports reporter  — which was also when this issue really began getting mainstreamed. It is undeniable that biological males on average have a distinct advantage in competitive sports; it’s also true that some transgender women have already dominated some women’s sports spaces.

One of the few real-world applications we’ve seen in professional sports was in Mixed Martial Arts, when a trans woman named Fallon Fox fought Tamikka Brents. Brents was a world-class women’s MMA fighter and she was knocked out in two minutes, her orbital bone shattered, and Fox was promptly barred from fighting women again (Correction: Fox was not actually barred: she had a green light from the Florida athletics commission to continue fighting. But she faced such a torrent of criticism from leaders at the UFC and fellow fighters that she never fought again). Brents, who was clearly open to accepting Fox in the sport, later said she’d never felt strength like that in her fighting career — saying “I’ve never felt so overpowered ever in my life… Her grip was different.” This case has since been used as an argument for better regulation when integrating trans women into women’s sports.

Nancy Hogshead-Makar, a leader at the Women’s Sports Policy Working Group, has staked out a position on this I appreciate: she says competitive sports are akin to pregnancy and medical testing — areas that require a science-based approach for trans inclusion. I share this view: a trans woman should be allowed to adopt a child or apply for housing or go buy a drink in a store without ever facing discrimination. Full stop. But keeping the playing field level for women in an arena like sports requires a level of regulation and guardrails that these other areas don’t. Some have suggested regulations around whether someone goes through puberty as a boy or has undergone hormone treatment. I’m not well-read enough on the nuances of the science to say what would be most effective, but I’m open to these kinds of changes.

I’m similarly sympathetic to religious liberty issues in the bill. It’s a plain and difficult fact that some people’s observance boxes them into opposing things like same-sex marriage, and I certainly understand a person’s faith overriding everything else. But we live in a country that is not just built on freedom of religion but freedom from religion — the distinct separation of God’s law from America’s law. We need to walk a line between not forcing religious institutions into violating their own faiths and not allowing the same institutions to force their faith-based beliefs onto the public at large. Especially when they’re exclusionary.

Religious and non-religious Americans alike are expected to be tolerant of differing religious beliefs, so it is only fair to ask that religious Americans be tolerant of identities and lifestyles that compete with their religion's worldview. That’s the complicated, messy country we’ve all chosen.

As such, my position is that a church should be able to ask its members to follow scripture by the letter and a religious baker should not be allowed to refuse to serve a gay couple. I think we are capable of holding these two things at once. The Equality Act, as it stands, doesn’t appear to have all this nuance carved out, but perhaps we can get there with adjustments to what exists now.

On the whole, the framework and intent of the bill is something that has my support. But like any piece of legislation, it could use some refining.


A story that matters.

The New York Times is out with a fascinating piece on how race, class and social justice issues upended Smith College in Northampton, Massachusetts. A student there alleged racial bias from the school staff that resulted in suspensions, job losses and public criticism. But an independent investigation did not support the student’s claims, and the accused staffers have pointed to class issues as the heart of the division. The story is an interesting read about the challenges schools are facing to grapple with issues of race, class and power. (The New York Times)


Numbers.

  • 74%. The percentage of all Americans who say economic damage from COVID-19 is their top concern for the country, the highest of any issue, according to Echelon Insights.
  • 82%. The percentage of Democrats who say their biggest concern for the country is Donald Trump’s supporters, the highest of any issue, according to Echelon Insights.
  • 79%. The percentage of Democrats who say their biggest concern for the country is white nationalism, the second-highest of any issue, according to Echelon Insights.
  • 81%. The percentage of Republicans who say their biggest concern for the country is illegal immigration, the highest of any issue, according to Echelon Insights.
  • 79%. The percentage of Republicans who say their biggest concern for the country is lack of support for the police, the second-highest of any issue, according to Echelon Insights.

Remember.

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Have a nice day.

Remember the threat of the twindemic? Scientists warned at the end of last summer and into the fall that the United States could face twin crises: a coronavirus pandemic coupled with a flu pandemic. But we are almost through flu season and have effectively crushed it — with the flu practically disappearing from the U.S. altogether this year. We are seeing the lowest number of flu cases in 25 years, and doctors are crediting social distancing, mask wearing and a collective effort at good hygiene across the country for the historically slow flu season. (Associated Press)

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Isaac Saul

I'm a politics reporter who grew up in Buck County, PA — one of the most politically divisive counties in America. I'm trying to fix the way we consume political news.

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