The Equality Act raises, but doesn’t resolve, key issues
Last Thursday, the House of Representatives passed the Equality Act, adding “sexual orientation and gender identity” to the definition of “sex” in the federal civil rights laws. All Democrats and three Republicans voted for the bill. A similar version in 2019 had received the support of eight House Republicans and all Democrats.
The resistance from the rest of the Republicans was not because these Republicans wished to allow employers to fire employees for being gay. Rather, the opposition focused on the issue of college sports, bathrooms and bona fide religious beliefs.
Eventual passage of the act should reflect the agreement that does exist, while avoiding the issues where it does not, in American society today.
When the 1964 Civil Rights Act was passed, outlawing discrimination in public accommodations, employment and programs receiving federal money, specific concerns were dealt with by exceptions. Many labor unions had discriminated against Black Americans in the past and enforced seniority terms in their contracts that locked in the advantage Whites had received. The support of organized labor was essential to the passage of the 1964 act, and many White employees were fearful that they would lose their accumulated seniority if the act passed.
So, a specific exemption was placed in the bill: preferences due to established seniority systems not facially discriminatory were allowed to continue. Another exemption was for “bona fide occupational qualifications.” A man could be excluded from competing in women’s wrestling. A woman could be excluded from a movie role that called for a “leading man.” Those exclusions did not please the most activist of the supporters of the 1964 act, but what passed did represent the majority will of the people’s representatives in Congress.
Compared with the absence of civil rights protection before 1964, the bill, even with its exclusions, represented progress. The purists in 1964 feared that the statement of an exclusion undermined the fundamental right: that society should not make any distinctions based on sex. The American people’s representatives did not completely agree, and their will, not the purists’, became law.
The Equality Act, as it now moves to the Senate, would benefit from similar carve-outs. The controversial issues of access to bathrooms and participation in college sports can be explicitly excluded from the bill — not to say such discriminations are necessarily desirable, but simply that the American people are not yet ready to resolve those questions. That’s what happened in 1964.
The alternative is that no bill at all is passed; in the unlikely event that the Equality Act does pass in its present form, the resolution of the controversial issues would surely move to the courts. The language in the bill says “access to shared facilities.” If a facility, or a sport, is not shared, but provided to different genders, is the law violated? “Separate but equal” was struck down for race but never has been forbidden for gender. Perhaps race and gender should be treated analogously, perhaps not. It is Congress’ duty to resolve those issues, not punt them to the courts to decide.
Where a delineation that Congress or a state legislature makes violates the Constitution, of course, then courts must act; but courts risk becoming super-legislatures when they apply the Constitution’s prohibition against depriving persons of the “equal protection of the law” to prevent reasonable carve-outs like those I’m describing. Abstention by the courts is especially advisable when the First Amendment’s prohibition on government interfering with the free exercise of religion is involved.
Some religious universities receive federal money but teach that the practice of homosexuality is sinful. Congress should be free to pass the Equality Act without imposing on religious beliefs. The current bill explicitly claims precedence over the 1993 Religious Freedom Act that requires federal laws to accommodate religion. That provision should be dropped.
Our society is struggling toward the goal of fairness. We should not impede that progress because it is piecemeal.