Right after Joe Biden was inaugurated in 2021, his administration promised priority passage of the Equality Act, which would enshrine sexual orientation and gender identity in US antidiscrimination law. Given the stalemate in the Senate, the bill could not pass, but the threat of its passage gave rise to proposed alternatives such as the Fairness for All Act and the Equality for All Act. None of these efforts were successful at that time.
However, just within the last few days the Church of Jesus Christ of Latter-day Saints (of which I am a member) co-signed a letter with “a group of over 45 religious, LGBTQ and educational leaders.” The letter “specifically asks Floridians to support non-discrimination legislation to protect ‘all people from discrimination in employment, housing and public accommodations, while also protecting important religious rights.’” This ask is directly modelled after the proposed federal Fairness for All Act, which the Church officially supports.
The Fairness for All Act has never sat right with me, but it didn’t seem to matter since none of the proposed bills could be passed. With this recent new mention by the Church, I realize now that the November midterm elections may well bring us back to the question. Maybe it’s finally time to articulate what I feel is wrong with the Fairness for All Act (as well as the Equality Act and the Equality for All Act).
This determination of mine is also guided by the nation’s recent experience in the wake of the Dobbs decision by the US Supreme Court. Republicans were caught flat-footed after this victory, with many red states bringing in egregiously bad new abortion laws—some with no exceptions whatsoever for rape or incest or fetal non-viability—or even reverting back to laws from the 19th century (because for some states, those were the only state abortion laws on the books after Dobbs). Victory brought debacle because many had not carefully thought out in advance what all the complexities were. Just ask Kansas, a red state where voters in direct referendum defied their political representatives on the issue of curtailing abortion rights.
If the November midterm elections bring victory yet again to Republicans, there could be a similar debacle with the ill-conceived Fairness for All Act. To avoid that fate, let’s take a look at the shortcomings of each of the bills vying to be passed.
The Equality Act, supported by the Biden Administration, would rework every mention of “sex” in US laws and regulations to be “sex, sexual orientation, and gender identity.” This would make both sexual orientation and gender identity (SOGI) protected characteristics under the law as “sex” has been heretofore. Just as discrimination on the basis of sex is illegal, so discrimination on the basis of SOGI would be illegal—even in the face of religious liberty claims.
At first glance, anti-discrimination seems in the best tradition of the United States. And certainly in many areas of life, most Americans agree with that stance: a Pew survey this month found that 64% of Americans surveyed agreed or strongly agreed with laws that would “protect transgender people from discrimination in jobs, housing, and public spaces.”
But in situations where physical bodies matter, Americans (rightly) favor sex-based distinctions. For example, in that same survey, 58% of Americans surveyed felt “trans athletes should compete on teams that match the sex they were assigned at birth,” with only 17% opposed to that stance. A strong plurality also favors sex-based distinctions for public restroom use (41% to 31%). Other polls have shown strong public support for separating prisoners based on sex, maintaining single-sex shelters, locker rooms, and hospital/nursing home rooms, and continuing to collect data such as crime and census statistics in a sex-disaggregated manner.
Interestingly, the Equality Act not only puts sex-based distinctions at risk, but also distinctions based on sexual orientation. Tasmania in Australia is a case in point, given that this state has passed an equalities law very much like the Equality Act proposed in the US: “A new ruling in Tasmania decrees that lesbians will be breaking the law if they host single-sex spaces. Anti-Discrimination Commissioner Sarah Bolt banned LGB Alliance Tasmania from hosting lesbian events that exclude transwomen, on the grounds that such gatherings carry a ‘significant risk’ of breaching existing equalities legislation.” Indeed, the very definitions of words like “lesbian” or “homosexual” are now deemed transphobic, since they are based on sex and not gender. Homosexuality, we are told, must now be defined as “same gender attraction,” not “same sex attraction”—or it will run afoul of equalities legislation.
Given that the Equality Act is a certifiable train wreck for both females and homosexuals, various groups have tried to create carve-outs so their own train won’t get wrecked. This describes the aims of both the Fairness for All Act and the Equality for All Act. The Equality for All Act, promoted by Women’s Declaration International USA, promotes anti-discrimination on the basis of “sex, sexual orientation, [and] nonconformity to sex-based stereotypes,” which cuts out “gender identity” entirely in favor of phenomena related solely to sex. Because of this rhetorical shift, the Equality for All Act is able to assert that “with respect to nonconformity to sex-based stereotypes, an individual shall not be given access to a shared facility, including a restroom, a locker room, and a dressing room, that is not in accordance with the individual's sex.”
The Equality for All Act has little time for religious freedom, however, for it states, “The Religious Freedom Restoration Act of 1993 (42 U.S.C. 2000bb et seq.) shall not provide a claim concerning, or a defense to a claim under, a covered title, or provide a basis for challenging the application or enforcement of a covered title.” That is a serious mis-step, for the proposed bill then fails to protect a majority of Americans with sincere religious beliefs about these subjects.
The Fairness for All Act, on the other hand, cares a lot about religious institutions (that is, a “religious corporation, association, educational institution, or society,” as per the proposed law), but very little about anyone else. That is, under the FFAA, SOGI would still be written into law, exactly as it would under the Equality Act, but the law would not apply to religious institutions. SOGI would apply to all public spaces and publicly-funded activities (goodbye to single-sex public restrooms and school sports), but if a religious institution had restrooms or school sports teams, those could be segregated by sex. Strangely, the Fairness for All Act does not necessarily protect any religious individuals acting outside of the context of their religious institutions’ activities. And it wouldn’t protect non-religious individuals at all, even if they held deep and sincere beliefs objecting to the elimination of single-sex spaces.
The Fairness for All Act is so tightly focused on religious institutions’ legal immunity from SOGI discrimination claims that it feels not unlike a man who has callously commandeered a lifeboat for his personal use after a shipwreck and doesn’t care if the rest of us drown as a result. Religious institutions should seek to protect not only themselves, but their adherents—and even non-believers as well. Wouldn’t that be the ethical thing to do? No wonder several of the sponsors of the FFA bill are stepping back from their sponsorship, having realized its passage would be a pyrrhic victory. Utah’s senators and representatives should do the same, until the bill is fixed.
And the time is now to build a better bill than the Fairness for All Act— the November midterm elections have set the stage to thrash out this issue once and for all. Furthermore, a recent federal court case sets the stage for a new Supreme Court ruling on the issue. On 11 November of this year, a federal judge in Texas ruled that "Title IX's ordinary public meaning remains intact until changed by Congress, or perhaps the Supreme Court"—that is, the ordinary meaning of the word “sex,” which the judge is asserting does not include sexual orientation and gender identity (SOGI).
The showdown between sex and SOGI is upon us. It’s time to be “wise as a serpent and harmless as a dove.” Americans must be free to state what is true about sex, and legislation is urgently needed for all Americans—both religious and non-religious citizens—to have that right protected.
Full Citation for this Article: Cassler, V.H. (2022) "What’s Wrong With the Fairness for All Act," SquareTwo, Vol. 15 No. 3 (Fall 2022), http://squaretwo.org/Sq2ArticleCasslerFairnessAct.html, accessed <give access date>.
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