The Equality Act in the Senate

Heritage Explains

The Equality Act in the Senate

How This Legislation Could Change Everyday Life

This week, we discuss the Senate hearing on the Equality Act. Emilie Kao, director of Heritage's Devos Center explains the ways in which the Equality Act would affect everyday life, gives an outlook on the legislations future, and much more.

Michelle Cordero: From The Heritage Foundation, I'm Michelle Cordero, and this is Heritage Explains. The Senate Judiciary Committee held its first hearing last week on the Equality Act, a bill that would make gender identity and sexual orientation a protected class under Federal Civil Rights law. President Joe Biden has said that passing the Equality Act is one of his top priorities during his first 100 days in office, and the House passed its version of the Equality Act in February. And now, the Senate is the last hurdle.

Dick Durbin: Instead of discriminating against and marginalizing LGBTQ Americans and LGBTQ kids, we should be working toward a more inclusive America. That's exactly what the Equality Act would help accomplish.

Cordero: That was Senate judiciary committee chairman, Dick Durbin. He and other advocates for the bill spent their time stating that the Equality Act would not have negative implications for women's sports or religious institutions, and that they simply want the same rights as everyone else. And here's journalist and author, Abigail Shrier, who also testified that day and disagrees.

Abigail Shrier: If a woman in your state commits a crime, should she be put in a correctional facility with biological males, some of whom are sex offenders, some of whom may have only begun identifying as female weeks earlier, all of whom could easily overpower her? If a preschool has a policy that only female teachers may accompany little girls to the bathroom and your daughter's male teacher suddenly identifies as female, ought that teacher to have a legal entitlement to accompany her? Does that strike anyone in this room as safe or sensible? Should a female abuse survivor at a domestic violence shelter be forced to sleep and undress next to a biological male? The plain truth is that it is not sensible, not safe, and certainly not just, to end these hard won protections for women and girls in the name of equality.

Cordero: Today, we're going to dig in to some of the liberal narratives around this bill and explain if they are myths or facts. My conversation with Emilie Kao, director of Heritage's DeVos Center for Religion & Civil Society, right after this short break.

Cordero: Emilie, on the surface, this bill sounds like legislation that makes it a punishable offense to discriminate against anyone who identifies as gay or transgender. Is that what it is? Because, there isn't anything necessarily wrong with that.

Emilie KaoWell, it's really important to understand that there should be freedom to disagree in this country about gender identity and sexual orientation, and that disagreement is not the same thing as discrimination. For instance, if you believe that male and female are two different sexes and that these sex differences matter, you will support things like separate sports teams for men and women or separate spaces for private activities like getting undressed or getting dressed or taking a shower. But the Equality Act would punish you if you believe those things. It would treat you as if you were a bigot who discriminated on the basis of race. And so, it really is important for Americans to understand that disagreement is not discrimination. We should be able to disagree about things like gender identity and same-sex marriage, and that should not be treated as discrimination.

Cordero: When we talk about this issue, we hear a lot about how the Equality Act is going to threaten religious liberties, but blanket terms like religious liberties can be used so much that I think they start to lose their meaning. Can you give me more examples of how this legislation could change everyday life?

Kao: The example that is already in the courts is the one of faith-based adoption and foster care. Adoption agencies, foster care agencies, like those run by the Catholic church, are already being sued under discrimination law by the States. And they are not being allowed to serve foster children, even though we have a shortage of foster families for the 424,000 kids waiting for a foster family, simply because those agencies believe every child deserves both a mom and dad. And because of their religious beliefs, they are being discriminated against under state versions of the Equality Act.

Cordero: Yeah. Can you tell me a little bit more about what's happening at the state level?

Kao: Yes. So about half the States have added sexual orientation and gender identity as protected classes to their Civil Rights Law, and activists have weaponized those laws to punish people who disagree with them about marriage and about gender identity. So they've not only punished people in the wedding industry like bakers, florists, and photographers, and they have punished these agencies that serve foster children and families that want to care for them. They've also used these laws in the States to punish a women's homeless shelter that did not want to admit a biological man. They also used these laws to destroy fairness for girls by allowing boys to compete against girls in sports. But what's really important about the federal law, is that it goes even further than any of these state laws, because it would also nullify the Religious Freedom Restoration Act that was passed by Congress, that gives protections to religious freedom. It doesn't determine that religious freedom always would win in a court, but it creates a higher standard of judicial scrutiny for any federal government burden on religious freedom.

Cordero: You mentioned sports before, and this has to do with the aspect of the bill that requires biological males to be permitted to participate in female only activities like sports. I'm hoping you can switch hats for a moment and try and explain how liberals in Congress don't find this problematic. What's their argument for supporting this? Do they actually think it's fair?

Kao: Well, the liberals in Congress and those who have supported this bill, they do two things. One is, they deny the reality of biological sex. They say that biology doesn't really make a difference. They say that some women can be faster or stronger than some men. The second thing they'll do is, they'll say transgender children should have a right to compete and athletics. Now, the answer to the first question is that biology does matter. That's the whole reason why we had the 1972 passage of Title IX, was because biology matters and women were not able to excel in sports without having their own teams. Women competing against women. That's why Title IX was tasked, to create those opportunities for women in education, specifically in athletics. Because before 1972, women often had tow, try out for the men's team if there was no women's team for them and they were not able to achieve at high levels.

Kao: And the fact is, that after going through puberty, males have a huge advantage physically because of what testosterone does to the body. That's why testosterone is banned as a drug in many sports, because testosterone makes a person stronger, bigger, faster, and males definitely have a biological advantage over females. The left just denies the science. Second, they say that all transgender children should have a right to compete in athletics, to which we would say, "Yes, they do." But to preserve fairness, they need to compete according to their biological sex, not according to their gender identity, because a person's gender identity is not what determines the outcomes in sports. It's their body that determines the outcome, because we're not talking about just, not talking about debate club, we're talking about physical competitions that involve the body.

Cordero: Thank you. I think that was a perfect explanation there of that part of the equation that I haven't heard from anyone. Let's talk about bathrooms now. The ACLU says the idea that it's dangerous for biological males to be in women's restrooms is a myth. What do you think about that?

Kao: I think that the ACLU would, again, like to deny the facts. Which is that male predators, not talking about transgender people, male predators are going to take advantage of the massive door that's open to them through the Equality Act. Because when you have a gender identity class and you have no objective determination of a person's gender identity in this law, anyone can simply say, "Well, I identified as a female at the time." Or, "I identify as a female now." It's simply a matter of that person's self perception and self declaration. Law enforcement officials have already warned that these types of policies and laws are going to give access to males who are predators to sexually assault females. And we've already seen that happening in women's prisons now, where male sex offenders have been allowed into the women's prisons and they have already sexually assaulted female prisoners.

Cordero: All right. Well, one more topic. I'm personally already seeing some of these viewpoints from the Equality Act being worked into my children's education in Loudon County, Virginia, how much worse could it get if the Equality Act was passed in the Senate?

Kao: It would get much worse, because it would affect every state and it would come from the federal government, so a few things would happen. Not only would we see the policies that we're talking about in sports and the locker rooms, we would also see curriculum. One of the things that the Equality Act does, is it changes the title of the Civil Rights Act that was on desegregation of public schools. And by doing that, by adding gender identity as a protected class in that particular title, it's going to open the door to a federal mandate of curriculum in K through 12 schools, both private and public, that will teach this destructive gender ideology to children, that will confuse them about their bodies, and that will teach a very politicized view of sexual orientation.

Kao: So that is something that all parents should be aware of, because these ideas that are being promoted, that a child could be trapped in the wrong body, are very dangerous. Especially when children are not at the age where they can really understand either what that means or the harmful consequences that come along with attempts to give children hormonal or even surgical therapies for gender dysphoria.

Cordero: I can't help but think of the article that just came out in The Federalist that talked about parents who disagree with some of the racial equality policies going on, that if they bring up or question it, that their name's being put on a list, and how long it would take before parents who put any sort of question to this type of curriculum, how long it would take before their names would end up on a list as well.

Kao: That's exactly what would happen. And the Human Rights Campaign is the main backer of the Equality Act. They have videos in their Welcoming Schools program, that describe parents who oppose gender identity policies as trolls. So what you would see if the Equality Act were to pass, would be exclusion and stigmatization of parents and children who don't go along with the new progressive orthodoxy on gender identity.

Cordero: And I think it was Heritage's Lindsey Burke, who said in an event that you participated in, that I think it was 66% of parents of kindergartners did not want their children diving into these issues at that age.

Kao: That's right. Lindsey did a survey this summer of parents and school board members across the country, and 66% don't want their children to be taught about gender identity; because they know that when a child is read a book like I Am Jazz, about a boy who identifies as a girl and then takes hormones and ultimately he had surgery, that's incredibly confusing for a child. Kids, again, they can't tell at that young age what is reality and what is imagination, what is a fairytale. And giving them the kind of message that you could be trapped in the wrong body, it's really scary to parents and it's really unfair to children, because they really can't tell what the truth is and what is a falsehood.

Cordero: In conclusion, Emilie, what do you think the chances are, having listened to the Senate hearing, that this passes in the Senate?

Kao: I'm optimistic that as the facts come out, more and more Americans will realize the dangers of these radical gender identity policies and how Americans would be compelled to agree with the government's viewpoint on same-sex marriage and on sex differences. And so, there were some very encouraging moments from today's hearing. One of the things that stood out to me was when Senator John Kennedy asked about whether parents could lose custody of their children more if the Equality Act were to pass, over disagreements about the treatment of gender dysphoria. And Abigail Shrier's answer was yes, this could happen. And I think that when Americans recognize the dangers of a radical bill like this, they will stand up against it, and hopefully the members of Congress will listen.

Cordero: Do you think if this fails in the Senate that this will be the end of the Equality Act?

Kao: Unfortunately, it will not be the end of the Equality Act. The Democrats have made this one of their top priorities. Joe Biden said that he would try to sign it in his first 100 days. This is a huge issue for them. They have the overwhelming support of corporate America. But again, this is not something that most Americans are on board with. Most of our polling shows that the sports policies, the locker room policies, and the curriculum policies that the Equality Act would impose, are things that the majority of Americans also are opposed to.

Cordero: Thank you so much for your insight, Emilie, and hopefully we'll catch back up with you on this issue again soon.

Kao: Thanks, Michelle.

Cordero: And that's it for this week's episode. I'm going to go ahead and put the link to our Equality Act explainer, a written version, in our show notes. Tim is up next week, we'll see you then.