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What to know about the infrastructure bill’s controversial ‘gender identity’ provision

Some religious conservatives believe the bipartisan infrastructure bill would fuel discrimination against people of faith

Senate Majority Leader Chuck Schumer pumps his fists after the Senate approved a $1 trillion bipartisan infrastructure deal.
Senate Majority Leader Chuck Schumer, D-N.Y., walks off the Senate floor and pumps his fists after the Senate approved a $1 trillion bipartisan infrastructure deal on Capitol Hill in Washington on Tuesday, Aug. 10, 2021. Some religious conservatives believe the bipartisan infrastructure bill would fuel discrimination against people of faith.
Andrew Harnik, Associated Press

The bipartisan infrastructure bill passed by the Senate on Tuesday aims to help American communities rebuild roads, expand internet access and generally improve residents’ lives.

But some religious conservatives say that, unless the bill is amended to adjust a controversial anti-discrimination provision, it could fuel attacks on people of faith.

In its current form, the bill would “severely undermine religious freedom in America,” said leaders from the Religious Freedom Institute in Washington, D.C., in an Aug. 6 statement.

The contested provision appears in the section of the bill establishing a grant program to boost broadband internet access. It implies that organizations hoping to receive the grant money must comply with the program’s anti-discrimination protections.

“No individual in the United States may, on the basis of actual or perceived race, color, religion, national origin, sex, gender identity, sexual orientation, age or disability, be excluded from participation in, be denied benefits of or be subjected to discrimination under any program or activity that is funded in whole or in part with funds made available to carry out this title,” the provision says.

By including “sexual orientation” and “gender identity” in the list of protected characteristics, policymakers essentially made it impossible for some religiously affiliated organizations to take part in the grant program, Religious Freedom Institute leaders said.

“Rural faith-based colleges and universities, small faith-based businesses, and faith-based hospitals and medical clinics, sometimes the only health care services for miles, could be forced to violate their religious conscience or be denied participation in the program,” they said.

Sen. Josh Hawley, R-Mo., raised concerns about the same provision last week as he outlined why he opposed the bill. The Senate has no business linking infrastructure plans to culture war battles over LGBTQ rights, he said.

“This is not really an infrastructure bill,” Hawley said during an Aug. 4 press conference with other conservative leaders. “This is a woke politics bill.”

Partisan clashes over how best to balance LGBTQ rights with religious freedom are one reason why another high-profile bill, the Equality Act, stalled in the Senate after passing the House in February. That bill would add sexual orientation and gender identity-based protections to federal civil rights law while limiting the availability of religious exemptions.

Despite the Republican Party’s past resistance to forcing faith groups to comply with LGBTQ anti-discrimination measures, 19 GOP senators joined with all 50 Democrats to pass the infrastructure bill on Tuesday.

The House will need to pass the Senate’s version of the bill before it can move to President Joe Biden’s desk.