SOME NOTES ON THE PROPOSED US EQUALITY ACT (S.788)
by Dar Guerra
There is currently a Bill (The Equality Act, S. 788) in the US Senate Judiciary Committee which proposes to radically revamp women’s civil rights protections in the process of obtaining coverage for sexual orientation and gender identity. The bill has already been approved in the House. If it is approved by the Senate Committee it will go to the Senate floor for a vote, then to the President for veto or signature.
Current mainstream opinion is that it will not get out of Committee (previous similar bills did not) this year. However, a lot of money has been spent to obtain the support of billion-dollar corporations like Apple and Google this time around. It is being sold to the Senate and public as a simple expansion of existing law to remedy employment discrimination (though it is much more than that).
Also, if the Harris Funeral Homes case and its associated cases (Zarda and Bostock) are decided by the US Supreme Court before further Senate action and do not support trans and sexual orientation inclusion in federal civil rights law, this Bill will be the only egg left in the basket for transactivists and there will be even more pressure to enact it. Finally, if a Democratic Congress is elected in 2020 there is a very good chance of passage at that time, IMO.
This is some of the political context. Here is the text of the Bill:
The Bill has 12 Sections:
1. Title: “The Equality Act”
2. Findings and Purpose
3-9. Amendments to the Civil Rights Act of 1964
10. Amendments to Fair Housing Act
11. Amendments to Equal Credit Opportunity Act
12. Amendments to federal jury law: USC Title 6 Chap 121
The overall effect of these changes is to include sexual orientation and “gender identity” within the protected category of “sex” in all these laws, but there are a number of other new additions and qualifications too.
Changes to the current laws that may negatively affect women’s rights are summarized below with my comments:
1. The Bill is presented as supplanting current law on sex discrimination, by announcing its purpose is to “prohibit discrimination based on sex” in addition to gender identity and sexual orientation.
Comment: There is already a federal legal framework in place prohibiting sex discrimination. The current law on sex discrimination is adequate and has developed from more than 50 years of cases. There is no call from women to change current law. The current established line of precedents will be disturbed if the Bill is enacted as if it supplants the current nondiscrimination law, rather than supplementing it.
2. The overall structure of the Bill is designed to require federal nondiscrimination laws to expand their “sex” protected category to include gender identity and sexual orientation. “Include” is defined: “…including, but not limited to, consistent with the term’s standard meaning in Federal Law”.
Comment: This opens the “sex” category to further expansions. For instance, though LGBTQ is referred to often in the Findings, the “Q” is dropped in the proposed changes. Sexual orientation is defined as “heterosexual, homosexual, or bisexual”, leaving out “Q”. “Q” is not referred to in the Gender Identity definition either. No attempt is made to define or include “Q”, probably because there is no specific objective way to define it and it is seen as a strategic liability at this time. The broad definition of “including” makes it possible to agitate to add it in later.
Further, whether pedophilia is a kind of sexual orientation is a topic of debate in medical and legal circles at this time. Transvestism and “drag” performers are often “included” as being types of gender expression. The expansion and general structure of this Bill would focus attempts to add such groups into the sex category and direct attention to issues of tiny minorities, away from the issues of hundreds of millions of U.S. women.
“Gender identity” (and sexual orientation) are therefore piggybacking into the “sex” category rather than presented as new protected categories. GI is a kind of discrimination with roots, history, and issues so different from the roots, history, and issues involving biological sex that it is confusing and chaotic to combine it with sex as a kind of sex discrimination. This structure negatively impacts the rights of women.
Women have no other specific categorical protection in federal law (except the right to vote). If the same legal protective category refers to both members of the active, aggressive, litigious, wealthy “L”GBTQ group and the group of women, then women’s rights will be permanently wedded to that group legally and in consequence, socially. This may mean that nothing specific to women may be dealt with separately. It will mean that language referring to women legally will change. The addition of the “L”GBTQ group may lead to a single-identity status without internal boundaries. Biological women and men may become appendages (as for instance if a new overall category is called “TGBLC”, with “C” standing for “Cis” women and men). The result will be a serious dilution of efforts to remedy inequality of biological women based on sex, which the original legislation was intended to accomplish.
3. The Bill also defines gender identity (and sexual orientation) as separate statuses. This appears to add two new protected categories to the federal nondiscrimination laws, as well as adding the very same categories to the existing “sex” category. (see sec. 7 (f) (3) of the Bill: “…a reference in that section 1106 to…sex (including sexual orientation and gender identity)…shall be considered a reference to ‘…sex, sexual orientation, gender identity…”)
Comment: This is unheard of in law. Separate and conflicting lines of cases would ensue. This at first appears to be poor drafting but is more likely an attempt to introduce the politically unpopular notion of separate categories to federal law by slipping it into a definition that may be missed.
4. The Bill resolves existing legal conflicts regarding shared facilities and events in favor of gender identity over biological sex.
The Bill specifically states that “shelters”, “care centers”, “salons”, “health care facilities”, and any “establishment” that provides “recreation”, “public gathering”, and “exercise” may not discriminate based on gender identity. “Establishments” are expanded to include non-physical places, and “individuals” who provide such services or programs are prohibited from such discrimination. “Restrooms”, “locker rooms”, and “dressing rooms” are also specifically included as such facilities.
Comment: Again, the definitional sections of the Bill are being purposed to make major legal changes. In this case, many pending cases in the courts dealing with these very conflicts between women as a class and gender identitarians as a class will be resolved by the Legislature, rather than by the courts. It is important to women to affirm their rights to privacy under Roe v. Wade in the context of these court challenges, and removing them from a precedential setting and reasoned argument and resolving them in this summary manner is not in the interests of women.
For examples, there are lawsuits pending involving a transgender male who has not undergone SRS, who is suing several small business women who provide intimate grooming to women such as bikini waxing. There are lawsuits involving girls who are distressed at being forced to share locker rooms with men. Women’s gatherings which are advertised publicly might not be able to limit attendance to biological women. Women’s religious organizations which limit rituals and church services based on biological sex would not be able to do so (the Bill also expressly prohibits exceptions for religious institutions). The courts are much better suited to sort out these conflicts.
The case of Roe v. Wade, so central to women’s rights, may be affected by this Bill’s enactment. Women’s right to privacy cannot easily be made legally consistent with men’s new right to “gender expression”.
5. The Bill supplements, or may supplant, women’s protections under the Pregnancy Discrimination Act by specifically covering “related medical conditions” of pregnancy.
Comment: Since trans women are covered under these new provisions, this provides a legal framework to support ongoing pressure from the trans community for medical support and insurance coverage aiding biological men to “chestfeed”, receive artificial wombs, etc.
6. “Conversion therapy” is pronounced to be “discrimination”, a legal term. However, this statement is found in the preliminary “Findings” section, which is ordinarily factual and is not usually part of the enactment, though Findings may be used to interpret the enactment itself. It says: “The discredited practice known as “conversion therapy” is a form of discrimination that harms LGBTQ people by undermining individuals [sic] degree of self worth, increasing suicide ideation and substance abuse, exacerbating family conflict, and contributing to second class status.”
Comment: The term is used here in the context of medical professionals counseling adults and children regarding dysphoria and a desire to change their gender. This statement interferes with good medical practice by intimidating professionals who will not be able to discuss NOT transitioning or address uncertainties of their patients without possibly being accused of violating federal law. This is not in the best interests of women and girls’ health.
By placing this statement in the factual “Findings” section, the drafters of the bill avoid the scrutiny applied to the rest of the enactments, yet manage to insert “conversion therapy” as a discriminatory practice into the deliberations of judges.
The promotion of one-sided “affirmation therapy” is especially concerning in light of the young age of girls consulting medical professionals.
7. Some of the most significant language of the proposed Bill is found in various sections on Statutory Interpretation and Definitions. “Gender identity” is defined in Sec. 9(2) (a) (2): “The term ‘gender identity’ means the gender-related identity, appearance, mannerisms, or other gender-related characteristics of an individual, regardless of the individual’s designated sex at birth”.
: This definition greatly expands the currently-understood meaning of gender identity. The trans-representing organization Human Rights Campaign, for instance, defines it as “One’s innermost concept of self as male, female, a blend of both or neither – how individuals perceive themselves and what they call themselves.” https://www.hrc.org/…/sexual-orientation-and-gender-identit…
Medscape defines it similarly, and differentiates it from “gender role” which is observable and may be objectively observed: “Gender identity is defined as a personal conception of oneself as male or female (or rarely, both or neither). This concept is intimately related to the concept of gender role, which is defined as the outward manifestations of personality that reflect the gender identity. Gender identity, in nearly all instances, is self-identified, as a result of a combination of inherent and extrinsic or environmental factors; gender role, on the other hand, is manifested within society by observable factors such as behavior and appearance.” https://emedicine.medscape.com/article/917990-overview
The usual meaning of gender identity is therefore expanded in the Bill to include not only an internal, subjective perception, but the objective behavior that manifests in society from that role. Since the legal term “sex” is being re-defined in the Bill to include “gender identity”, it should be noted that the actions of heterosexual biological women contravening sex stereotypes are subsumed in “gender identity”. The term “gender identity” is expanded to cover not just transgender, but all gender-role-non-conforming (GNC) people.
“Gender expression” appears to cover persons who cross-dress occasionally, express sexual fetishes in their mannerisms, and no doubt other stigmatized similar groups. Their insertion into the new federal civil rights framework needs further study.
8. Sec. 9 (2)(a)(4) re-defines the legal term “sex” in the U.S. Civil Rights Act as follows: “The term ‘sex’ includes (A) a sex stereotype; (B) pregnancy, childbirth, or a related medical condition; (C) sexual orientation or gender identity’ and (D) sex characteristics. including intersex traits.
Comment: Stunningly, this definition does not include “sex”. Insufficient attention has been given to the impact of such a proposed new nationwide law affecting sex discrimination that does not include the biological sexes. This omission appears deliberate, as trans ideology currently challenges the existence of biological sex. What then, is the remedy for a biological woman discriminated against in employment because the employer does not want to hire women? The erasure of the intent of the original prohibition of sex discrimination in employment, education, sports, and public facilities appears to be complete, unless women discriminated against on the basis of their biological sex can find a way into one of the other categories.
The word “traits” in the phrase “intersex traits” is undefined and vague. “Intersex” is not defined. The effect is to support the transactivist ideological position that sex is a spectrum.
9. Section 2 of the Bill sets forth twenty detailed “Findings”. A Finding is a statement of underlying facts and principles accepted by the Bill’s proposers and incorporated as providing the factual basis for the proposed legal action. The Findings include the following example:
a. Subsec. 10 finds that defined discrimination based on sexual orientation and gender identity by state and federal government violates the Equal Protection Clause of the Fourteenth Amendment.
Comment: This is a legal conclusion which could be claimed to control the Judicial Branch henceforward. It appears to overreach the usual scope of Findings provisions. It arguably affirms a new and separate cause of action for filing discrimination lawsuits.
The Findings also include the statement that barring discrimination in foster care, adoption, and child welfare services will help LGBTQ children. While this is true, it is worth noting that a number of religious organizations supporting such services for children may shut down.
10. The Religious Freedom Restoration Act of 1993 no longer may be a defense for discrimination, according to sec. 9.
Comment: This may be of benefit to women, as use of this law to deny women abortions and contraception is increasingly widespread. However, to insert what amounts to a repeal of this federal law in the definitions section of this proposed Bill is unusual, and will lead to more confusion and litigation than if the repeal is separately enacted.
11. The established exception to the sex discrimination law in employment for bona fide occupational qualifications (bfoqs), is limited such that even if there is a bfoq (such as for a home health attendant position), “individuals are recognized as qualified in accordance with their gender identity” (Sec. 7 (b)(3), unlawful employment practices).
Comment: The bfoq exception applied to “sex” has always been limited to employment conditions in which the biological sex is a relevant consideration (such as home health carers). Under the Bill, then biological men who otherwise could legally be excluded from home health care of disabled or elderly women, must be included if their gender identity is “woman”.
CONCLUSION: The Bill would result in a complete overhaul of federal civil rights laws. It is likely to lead to decades of litigation because it is structured to include gender identity into the established “sex” protected category, which means there is no way of sorting out conflicts between the interests of women, including women’s right to privacy, and the distinct issues of gender identitarians. This structure is therefore unnecessarily and very substantially flawed. The introduction of a new protected category of “gender identity” (and also of “sexual orientation”) is a better way of structuring protections for these groups, if the Legislature wishes to adopt these new categories.
The established interests of women under the current “sex” category are diluted and erased to some extent by the overbroad and vague definition of gender identity. All protections relating to their right to associate with women, live with women, receive personal care from women, use facilities in which they undress or perform biological functions distinct from men, receive affirmative action to remedy prior de jure discrimination against women such as scholarships, participation in sports, shelter from domestic violence and rape, and many other protected conditions, are expressly opened to men who conceive of themselves as females, without any other qualification or the application of any objective criterion.
For these reasons and others outlined here, United States Senate Bill 788 should not be supported by women.
: This review of Senate Bill 788 is not legal advice. It is legal journalism and contains opinions. No individual or group has contributed to the writing of this article. This article does not represent the position of any group. The author is a women’s rights advocate, and this article does not purport to be a comprehensive, objective analysis of the proposed Bill. The article’s scope includes only potential impacts on women’s rights, and expresses no general opinion regarding the introduction of gender identity and sexual orientation into other relevant federal civil rights legislation. This article is copyrighted and all rights are reserved unless there is express permission of the author for a specific use.
© 2019 Dar Guerra