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Why Sen. Lee and other Republicans criticized the Equality Act during its first Senate hearing

The bill, which would add LGBTQ rights protections to federal civil rights law, passed the U.S. House of Representatives last month

A gay pride rainbow flag flies with the U.S. flag in front of the Asbury United Methodist Church in Prairie Village, Kan., on April 19, 2019. The Equality Act that would extend federal civil rights protections to LGBTQ people is a top priority of President Joe Biden and Democrats in Congress. Yet as the Equality Act heads to the Senate after winning House approval, its prospects seem bleak — to a large extent because of opposition from conservative religious leaders.
Charlie Riedel, Associated Press

Supporters and opponents of a push to expand federal LGBTQ rights agree that attacks on gay and lesbian Americans are wrong.

But Wednesday’s Senate Judiciary Committee hearing on the Equality Act made it clear they don’t agree on much beyond that.

In their statements and questions about the bill, participants in the hearing cast its contents in vastly different lights.

To Democrats, the Equality Act is a commonsense piece of legislation that furthers America’s quest to provide equal protection for all citizens.

“Instead of discriminating against and marginalizing LGBTQ Americans ... we should be working toward a more inclusive America. That’s exactly what the Equality Act would help accomplish,” said committee chairman Sen. Dick Durbin, a Democrat from Illinois, during his opening remarks.

Republicans, on the other hand, see the bill as an assault on religious freedom and women’s rights.

“We don’t oppose equality but we do oppose legislation where you take the rights of one and oppose the rights of others,” said Sen. James Lankford, R-Okla.

At various points in the more than three-hour hearing, the first hearing the Equality Act has had in the Senate, members of both parties expressed interest in compromise.

But they also acknowledged it will be difficult to bridge the gap between their conflicting ideas about how best to further LGBTQ rights.

“I hope that we can work together and make progress because there’s a real challenge here. But I feel like even in this hearing ... sometimes we were talking past one another,” said Sen. Thom Tillis, a Republican from North Carolina, during his time to ask questions.

What’s in the Equality Act?

The Equality Act, which passed the House on Feb. 25, would update federal civil rights law to prohibit anti-LGBTQ discrimination in housing, employment and many other areas of public life.

In doing so, it would set a consistent standard for treatment of the LGBTQ community, ensuring that gay and transgender Americans would no longer have to navigate a complicated mix of state-level policies, said Alphonso David, president of the Human Rights Campaign and one of five witnesses invited to speak during the hearing.

“This update to federal civil rights law is ... necessary because of the inconsistencies that exist at state and local levels,” he said. “The patchwork of laws leaves millions of people subject to uncertainty and potential discrimination.”

Stella Keating, a 16-year-old transgender girl from Washington, addressed the pain caused by that uncertainty in her statement.

As she makes college plans and considers career opportunities, she has to consider whether she’ll be able to access medical care or eat in restaurants in states where she’ll potentially move, Keating explained.

“What if I’m offered a dream job in a state where I can be discriminated against?” she said. “Why am I having to worry about all this at age 16?”

By passing the Equality Act, Congress would make the country a more welcoming place for girls like Keating. But, unless changes are made to the legislation, it could make life more difficult for other young women, according to Mary Rice Hasson, a fellow with the Ethics and Public Policy Center in Washington, D.C., who spoke against the bill.

“When gender identity is privileged over biological sex, females lose,” she said.

Hasson and other more conservative participants argued that the Equality Act would threaten recent advancements in women’s rights by, for example, enabling biological males to dominate women’s sports. They also expressed concerns about the bill’s potential impact on religious freedom, noting that it would likely lead to an uptick in lawsuits against faith-based organizations.

“We can protect the most vulnerable without telling people of faith that there’s no place for them,” Hasson said.

In its current form, the Equality Act would limit the application of existing religious freedom protections, making it more difficult for faith groups to defend themselves against discrimination claims.

It would also expand the definition of public accommodation under civil rights law, which could lead to more houses of worship being forced to deal with government interference, argued Utah Republican Sen. Mike Lee.

“Under this legislation, it appears that churches, synagogues, mosques and other religious buildings would likely be considered public accommodations” if they wanted to operate homeless shelters or food kitchens, he said.

Alphonso David speaks during a swearing-in ceremony at the Court of Appeals in Albany, N.Y., in April 25, 2016. David was one of five witnesses invited to speak during a U.S. Senate hearing on the Equality Act on March 17, 2021.
Mike Groll, Associated Press

Supporters of the Equality Act argue that concerns like Lee’s are overblown. In states where anti-LGBTQ discrimination is already illegal, faith-based organizations continue to operate freely, David said.

“We should make sure our policies are driven by facts, not by fears,” he said.

Similarly, Edith Guffey, a conference minister in the Kansas-Oklahoma Conference of the United Church of Christ and a mom to a gay and transgender son, said that new protections for the LGBTQ community should not be seen as an assault on people of faith.

“I’ve always been kind of amazed how we view giving rights to others like it means taking rights from others. As if there’s a limited amount,” she said.

Disagreement about discrimination

Guffey is one of thousands of religious leaders who support the Equality Act. The bill has also been endorsed by hundreds of corporations, health care organizations and business associations, including the U.S. Chamber of Commerce, according to Durbin.

Overall, “more than 8 in 10 Americans (83%) favor laws that would protect gay, lesbian, bisexual and transgender people against discrimination in jobs, public accommodations and housing,” Public Religion Research Institute reported last fall.

However, it’s still doubtful that the Equality Act will pass the Senate in its current form, since 10 Republicans would need to vote for the bill in order for it to overcome a likely filibuster attempt. There are currently no Republican co-sponsors in the House or Senate, and no Republican spoke in favor of the bill on Wednesday.

During the hearing, Durbin expressed a willingness to consider “good faith” suggestions and update the bill, but also implied that some of his Republican colleagues’ statements did not meet that standard.

“Many of the attacks on this bill are nothing more than the latest in a long, long, long line of fearmongering targeting the LGBTQ community,” he said.

Durbin also urged participants to be open to limiting faith-based exemptions to the Equality Act. No one should support allowing religious freedom to excuse discrimination, he said.

“I do believe that people who want to blatantly discriminate and use religion as their weapon have gone too far. We have to have limits on what they can do. Remember: The Ku Klux Klan was not burning question marks. They were burning the cross,” he said.

But his Republican colleagues don’t see faith-based objection to same-sex marriage or other LGBTQ rights as discrimination. They see it, instead, as a constitutionally protected expression of faith.

“We’re not bigots. We’re people who live by our genuine faith,” Lankford said.

He and others called on their Democratic colleagues to remember that in future Equality Act debates.

“We can find a way to ... pass something that honors every American but doesn’t discriminate against people of faith,” Lankford said.

Rep. Chris Stewart, R-Utah, has previously said that his LGBTQ rights bill, the Fairness for All Act, creates such an opportunity for Congress. Unlike the Equality Act, it would pair new protections for gay and transgender Americans with new protections for people of faith.

Stewart reintroduced the bill last month. Some observers believe it will influence efforts to overhaul the Equality Act’s approach to religious freedom.

“I think the most viable path forward for any legislative action (on LGBTQ rights) in the next four years is something fairly close to the Fairness for All Act,” Tim Schultz, president of the 1st Amendment Partnership, told the Deseret News in December.