The House passed the Equality Act in February by a vote of 224-206.
The Equality Act, which amends the 1964 Civil Rights Act to provide protections for LGBTQ individuals, seeks to ban discrimination in various areas — including the workplace, housing, education, and in federally funded programs — and would expand the 1964 bill to cover public accommodations like shopping malls, sports arenas, and even websites.
The bill enjoyed unanimous support amongst Democrats in the House, as well as the support of three House Republicans (Reps. John Katko, Tom Reed, and Brian Fitzpatrick).
In the Senate, however, now subject to filibuster, the bill faces a more onerous path.
WHAT IS IN THE BILL?
Section 3 of the Equality Act prohibits discrimination or segregation in public accommodations.
For purposes of the legislation, public accommodations are defined as a “stadium or other place of or establishment that provides exhibition, entertainment, recreation, exercise, amusement, public gathering, or public display.”
Examples are enumerated as follows: “Any establishment that provides a good, service, or program, including a store, shopping center, online retailer or service provider, salon, bank, gas station, food bank, service or care center, shelter, travel agency, or funeral parlor, or establishment that provides health care, accounting, or legal services … any train service, bus service, car service, taxi service, airline service, station, depot, or other place of or establishment that provides transportation service.”
Establishments, according to the text of the bill, “shall be construed to include an individual whose operations affect commerce and who is a provider of a good, service, or program; and shall not be construed to be limited to a physical facility or place.”
The sections that follow desegregate public facilities and public education; provide protections in federal funding, employment, housing, credit opportunities, and on juries; and state that individuals “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.”
WHAT REPUBLICANS ARE SAYING
Republicans fear that “places of accommodation” could be construed to include places of worship, which, they argue, would infringe religious freedom.
They also fear that allowing individuals to use restrooms that do not align with their assigned sex at birth poses a unique threat and undue danger, and that allowing transgender youth to participate in girls athletics places cisgender youth at a disadvantage.
WHAT DEMOCRATS ARE SAYING
Democrats say that the bill provides long-overdue protections for members of a marginalized class who often face discriminatory practices in states nationwide. These practices contribute to negative social and economic outcomes and abridge individuals’ constitutional rights.
Federal courts, they say, have ruled that the Equal Protection Clause of the Fourteenth Amendment entrusts the government with the power to “provide a full range of remedies in response to persistent, widespread, and pervasive discrimination by both private and government actors.”
WHAT ARE THE FACTS?
The LGBTQ community inarguably faces persistent, widespread, and pervasive discrimination. Studies have found, for example, that one-half of same-sex couples face adverse, differential treatment when seeking elder housing. Other studies show that transgender persons have half the homeownership rate of non-transgender persons, and one in five experience homelessness. Members of the LGBTQ community, especially transgender individuals, are economically disadvantaged and at a higher risk for poverty compared to their non-LGBTQ counterparts. And same-sex couples are often refused service by child placement agencies on account of their sexual orientation, despite the shortage of qualified homes available for youth in the child welfare system — a population in which LGBTQ youth are overrepresented by a factor of two.
And while some states have enacted laws designed to combat these discriminatory practices, other states have not only fallen short but have enacted discriminatory laws instead.
The Arkansas Senate, for example, passed a bill Monday that would ban access to gender-affirming care for transgender minors, including reversible puberty blockers and hormones. Alabama’s Senate passed a similar bill earlier last month, which would ban care for trans persons as old as 19.
And Governors in three states — Arkansas, Mississippi and Tennessee — have signed bans on transgender athletes into law.
It is sensible to me to limit the decisions that can be made in adolescence, before one has attained the age of majority.
After all, detransitioning, while rare, does happen. Surveys put the number at about 8 percent.
But a majority of these individuals — 62 percent — say that they only detransitioned temporarily, most often at the behest of a parent. Only 0.4 percent detransitioned permanently as a result of a change of heart.
Now, it could be argued that these results are skewed, reflective of the fact that the survey was commissioned by a transgender advocacy group.
But other studies have affirmed their findings.
Another survey, for example, found that just 2 percent of transgender individuals regretted undergoing gender-affirming surgery. When it comes to nonsurgical methods, studies have found that only 1.9 percent of individuals who start puberty suppressants in adolescence decline to take the next step in the transition process and pursue hormone therapy.
So “regret” is an exceedingly rare phenomenon.
Still, I can understand the desire to prevent children from making irreversible decisions.
But these healthcare bills do not limit their restrictions to irreversible decisions. They include temporary, reversible methods, as well. And that, to me, is unconscionable when you consider the psychosocial factors at play, which contribute substantially to physical and mental well-being (or lack thereof).
Studies have found that there is “a significant inverse association between treatment with pubertal suppression during adolescence and lifetime suicidal ideation among transgender adults … These results align with past literature, suggesting that pubertal suppression for transgender adolescents who want this treatment is associated with favorable mental health outcomes.”
Said Dr. Jack Turban, a resident at Massachusetts General Hospital who researches the mental health of trans youth, “Puberty blockers put puberty on hold so that adolescents have more time to decide what they want to do next. This is important because, while pubertal blockade is reversible, puberty itself is not. It’s much more common to regret not getting puberty blockers than it is to regret getting puberty blockers.”
Said Dr. Lee Savio Beers, president of the American Academy of Pediatrics, “The AAP recommends that youth who identify as transgender have access to comprehensive gender-affirming and developmentally appropriate health care provided in a safe and inclusive clinical space. The bill advancing through Arkansas Legislature not only ignores this recommendation but undermines it.”
So, too, do bans on transgender athletes undermine the well-being of transgender youth.
And to what end?
Conservatives argue that allowing transgender girls to compete against cisgender girls places the latter at an undue disadvantage.
But is this concern based in fact?
Consider, the families of three cisgender girls filed suit against the Connecticut Association of Schools last year, alleging that, by allowing transgender girls to participate in girls athletics, the association was stripping cisgender girls of the opportunity to succeed.
“Treating girls differently regarding a matter so fundamental to the experience of sports—the chance to be champions—is inconsistent with Title IX’s mandate of equal opportunity for both sexes,” the complaint reads.
But are they actually being deprived of the “chance to be champions”?
Because just two days after that lawsuit was filed, one of the complainants beat one of the transgender girls at issue in their state’s championship race. The complainant also won the long jump and the 300-meter dash, where the transgender athlete finished 16th.
And this is not an anomaly. The Olympic Games have had trans-inclusive policies dating back to 2004, and they have yet to have a single transgender athlete even qualify, while scores of cisgender women qualify every four years.
So is this perceived threat to cisgender prosperity of considerable scope or import? And should the athletic success of high school girls trump the mental health of a marginalized class?
While the American Academy of Pediatrics reports that 14 percent of American adolescents have made a prior suicide attempt, that number jumps to 29.9 percent for male to female transgender adolescents, 41.8 percent for non-binary adolescents, and 50.8 percent for female to male transgender adolescents.
That is an epidemic, and we should be looking to ameliorate the issue with progressive legislation, not usher in regressive legislation that shoots us several miles back.
After all, we know that suicide attempt and ideation numbers drop considerably when these individuals are given access to gender-affirming care.
We also know that the 10-12 percent advantage, on average, that men enjoy over women in athletic performance has been attributed to differences in testosterone — a hormone whose production is decreased and whose action is blocked through the administration of feminizing hormone therapy and pubertal blockers.
And yet lawmakers would prefer to prohibit transgender youth from being able to access these healthcare options. According to them, they are wildly concerned about testosterone giving transgender girls an unfair advantage, and yet they stand at the ready to deny access to the very tools and treatment options that serve to reduce the disparity.
What they are doing, in effect, is eliminating solutions to their own imagined problems.
And that is because much of this legislation is not rooted in good faith. It stems, at worst, from a rousing bout of transphobia; at best, from sheer indifference, ignorance, or misunderstanding.
Either way, these bills aim to solve problems that do not exist.
There is no epidemic of transgender girls monopolizing girls athletics.
There is no epidemic of transgender youth regretting en masse the reversible healthcare decisions that they make in concert with medical professionals.
Unisex bathrooms have been around for years, and there is no epidemic of restroom misconduct.
But you know what is endemic to our country? Suicide. A devastating reality and scourge on society with which too many LGBTQ youth grapple.
That is the problem that we should be flexing our legislative muscle toward. And that is what the Equality Act endeavors to do.
As far as religious freedom is concerned, the Religious Freedom Restoration Act mandates the application of a strict scrutiny standard when a law stands to infringe upon a fundamental constitutional right. Strict scrutiny requires that the Equality Act further a compelling government interest, that it be narrowly tailored, and that it use the least restrictive means possible.
Since I can find few government interests more compelling than eradicating discrimination and ensuring equal protection under the law, and since the Equality Act simply amends the Civil Rights Act to add an additional class of protected persons, I would imagine that it satisfies the prongs.
The American Bar Association agrees.
A national voice of the legal profession and the largest association of lawyers in the world, the ABA writes, “Like the existing statutes, the Equality Act will serve compelling interests in preventing discrimination, and will do so in the least restrictive manner. Accordingly, whether the law’s protections would be enforced by government or private parties, its nondiscrimination requirements would prevail both against RFRA-based objections entitled to strict scrutiny review, and against First Amendment-based religious objections subject to rational basis review. In sum, ABA support for the Equality Act would be consistent with the ABA’s longstanding support for sexual orientation and gender identity nondiscrimination protections, and would not create any new conflict with the ABA’s continuing support for RFRA.”
After all, the Supreme Court wrote in Masterpiece Cakeshop, Ltd., et al. v. Colorado Civil Rights Commission, et al. that while “religious and philosophical objections [to same-sex couples marrying] are protected, it is a general rule that such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.”
And in Employment Div. v. Smith, the Court concluded that the First Amendment “has not been offended” by burdens that are “merely the incidental effect of a generally applicable and otherwise valid provision,” and that laws of general application “could not function” if they were continually subject to challenge on religious grounds. For this reason, the Court stated, religiously neutral laws of general applicability should be reviewed according to a rational basis standard, as strict scrutiny review is only warranted when a law or its enforcement directly targets religious practices or beliefs.
Rational basis reviews require only that a law be “rationally related” to a “legitimate” government interest, which the Equality Act inarguably is.
For these reasons, the bill has my unwavering support. And while it is likely dead in the Senate, thanks to the filibuster — a legislative tool that is allergic to progress — I hope that we can all band together to fight for more inclusive legislation in our respective states.