We Need To Pass the Equality Act
Gays And Lesbians Are Still Waiting for Something That Should Have Happened Decades Ago
As I write this, in a number of states, it is perfectly lawful to refuse to rent an apartment to a gay couple, or even a couple that the landlord suspects might be gay. It is lawful for a college or high school to impose discipline on a student because he or she is transitioning or changed gender presentation. While it is in theory unlawful to fire a person for being gay or trans, that ruling hangs on 1 or 2 Supreme Court Justices (depending on what Justice Barrett, who has not weighed in, thinks about the issue).
For many Americans, this is unimaginable. America has become far less homophobic than it once was, and even many conservative Americans who may have moral objections to homosexuality or transitioning probably don’t think that people should lose their jobs or be evicted by their landlords over what should be a private matter. And yet, Congress has tried over and over again over the course of decades to expand the protection of our civil rights laws to LGBT people, and has failed to do it. Now that Democrats control Congress and the White House, there is a renewed push to do this. We definitely should.
The basic case for LGBT equality is simple. Being LGBT simply does not matter in exercising the basic life choices protected by civil rights laws. Bigots use discrimination against LGBT people to try to discourage their full participation in society and force them into the closet, just as they favored sex discrimination as a way to force women back into the kitchen and favored racial segregation to force Blacks back into a subordinate existence. It’s the same thing. It’s basic civil rights.
And we know that adding LGBT status to these laws will not harm anyone’s rights, because it has already been done. In many states and many other countries, LGBT people do have these civil rights protections. The world has not caved in. People who hold sincere homophobic views are not denied their right to express them. Indeed, just this week, the Vatican reiterated their opposition to same-sex relationships. Nobody prosecuted them, nobody sued them. The right of people to think what they want to think about homosexuality or gender transition has nothing to do with whether we extend civil rights to LGBT people. They are separate issues.
Enacting the Equality Act will not only provide needed legal protections for gays, lesbians, and trans people; it will also send the message that they are full participants in America. The same way the Civil Rights Act of 1964 did more than simply impose a legal bar on various forms of race discrimination; it told white people that Blacks were going to be treated as full participants in society. It smashed Jim Crow, and opened many, many doors that had been closed to Black people.
Current opposition to the Equality Act focuses on religious exemptions. The first thing to understand about this is that the Constitution already provides for some level of protection for religious groups. For instance, despite the bar on race discrimination, if you want to form a private club and exclude minorities, you can. And similarly, certain churches (most notably the Mormons before 1978) discriminated against Black people. They weren’t compelled to change these rules by the Civil Rights Act. However distasteful it may be, there is a right to private association under the Constitution. The Supreme Court has also given expansive protection to churches’ rights to choose their ministers and spokespeople; this will presumably not change and will protect the rights of the religious to object to practices they consider sinful.
But you have to ask yourself why is there any need for broader religious exemptions from LGBT anti-discrimination laws than currently exist for race and gender? Conservatives won’t say it, but the obvious reason is because a segment of conservative religious extremists feel very strongly that they should have the right to try and force people not to be gay or trans. The violence that gay and trans people still face in some parts of the country is clearly one part of this strategy; “conversion therapy” is a second prong of it. Allowing people to get away with discrimination if they say they have a religious objection to LGBT civil rights is a third prong of it. And conservatives are pandering to this group of mostly evangelical Christian conservatives. As a matter of principle, LGBT people should get the same treatment as racial minorities and women.
However, there is a pragmatic point here which may cut the other way. As I noted, civil rights protections for LGBT people have been proposed at the federal level for decades; they have managed not to pass despite public support. If some level of additional religious protection, with reasonable limits, is the cost of getting a bill through the Senate, it may be worth it. Prior to the Supreme Court’s Bostock decision outlawing sexual orientation and gender identity discrimination at work, numerous gay and trans people had lost their jobs over the years because of bigoted employers. They were the victims of a strategy that at some points prioritized the perfect over the good.
The other conservative objection is to pick edge cases like trans girls competing in high school sports. The problem is, these are edge cases. You can imagine edge cases with respect to Black civil rights too- say a sickle cell anemia study at a public university, or an acting part playing a Black character. There are always narrow cases where you can make some argument justifying a discrete act of treating people differently. But we wouldn’t deny Black civil rights just so theater productions never get sued over a casting decision! That would be a grossly disproportionate response to a minor problem.
And so it is with issues like trans girls competing in high school sports. For all we know, the Equality Act won’t even be interpreted to impose a legal rule on this issue, but if it is, and even if you think that such a rule would be wrong, it’s a very, very minor thing compared to all the situations where discrimination is currently legal and shouldn’t be, and the protection that it would offer LGBT people against the erosion of the Bostock decision.
Congress should enact some form of the Equality Act, and President Biden should sign it. It is long past time.