By DEACON MIKE MANNO, JD
Last week we looked at a couple of cases before the Supreme Court that could clarify a question that has troubled legal observers for some time: Does the word “sex” in the Civil Rights Act include gender identity or sexual orientation? An affirmative answer would open the doors for a slew of successful lawsuits from gender-confused individuals against churches, adoption agencies, wedding vendors, and school locker-room rules, among others.
But any decision by the court may be short lived if congressional Democrats have their way. In the House, the majority Democrats have introduced something called “The Equality Act” whose purpose is to not only give an affirmative answer to the above question, but to also provide sweeping legal protections for anyone questioning their assigned-at-birth sex. It will, in short, require any entity receiving federal funds — public accommodations, schools, and the like — to treat “gender identity” as “sex” and to treat a person in accord with the sex with which he or she identifies.
So for all of those young ladies who are losing athletic scholarships to bigger, stronger, and faster men who call themselves female, the jig will be up and there’ll be no legal relief; same for those girls who are uncomfortable sharing locker rooms with naked boys and object to being seen undressed by those individuals who are still biologically male.
There has been a lot of commentary and news reports, not only in this publication, but in scores of other Christian, Evangelical, Catholic, and politically conservative news outlets about this bill. The bill itself not only recognizes new protections for the LGBT crowd, but also values those protections above the religious conscience rights of faithful Christians who would now be forced to comply.
In short, the bill, while not expressly repealing the Religious Freedom Restoration Act (RFRA), states that it “shall not provide a claim concerning, or a defense to a claim” under the new Equality Act. RFRA, as you might recall, was passed nearly unanimously in 1993 and was signed into law by President Clinton. It required courts to apply a strict scrutiny test when deciding whether the Free Exercise clause of the First Amendment had been violated.
“Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability,” it states, and was part of the rationale behind Hobby Lobby’s Supreme Court victory against Obamacare’s contraception mandate.
Thus, the Equality Act would prevent Catholic Charities, or a Catholic hospital from acting in accordance with Catholic beliefs and mandates. As a result, for example, all the cases we’ve dealt with in this column concerning Christian adoption and foster-care agencies that do not place children with same-sex couples would be lost and those agencies either forced to abandon their beliefs or go out of business.
Kristen Waggoner, a senior vice president of Alliance Defending Freedom, said the Equality Act undermines the fundamental freedoms of speech, religion, and conscience “that the First Amendment guarantees for every citizen.”
The same would be the case with Catholic hospitals that do not perform sex-change surgeries or religious facilities that segregate shower and bathroom facilities. In a similar way, the act would force women’s shelters to expose already traumatized and vulnerable women to biological men seeking shelter who claim to identify as female, or even as non-gender.
The bill also provides another hidden trap for parents. We’ve discussed before the cases in which a state or local government has banned conversion therapy which is an attempt to use counseling and therapy to rid a person, often a minor, of unwanted same-sex attractions. In fact, some of those laws go so far as to — in the case of a minor — require that the counselor or therapist reaffirm the unwanted sexual feelings. The bill declares, in its findings, “The discredited practice known as ‘conversion therapy’ is a form of discrimination that harms LGBTQ people by undermining individuals’ sense of self-worth…and contributing to second-class status.”
In the “past is prologue” department, consider: In Ohio a transgender health clinic at a children’s hospital recommended starting drug therapy to prepare a young girl with gender dysphoria for the transition to male, but the family wanted to try therapy first. The local family services agency charged the parents with neglect and abuse and a local judge terminated their parental rights!
This despite the fact that studies have shown that between 80 and 95 percent of children with gender dysphoria grow out of it after puberty.
“The Equality Act could override the efforts of parents…to preserve their freedom to teach their own children about sexuality, marriage, and biology at the time of their choosing,” said Emilie Kao of the Heritage Foundation. “The act would codify in federal law certain viewpoints about sexual orientation and gender fluidity while censoring and punishing nonconforming viewpoints,” she added.
Other problems with the act include:
Houses of worship will be turned into places of public accommodation thus subject to anti-discrimination laws such as “open” restrooms;
LGBT individuals would qualify for affirmative action programs;
State laws protecting religious liberty would be overruled;
Schoolchildren would be indoctrinated in the LGBT agenda;
Federal funds would be denied to scores of schools and charitable agencies that currently receive them; and
Religious rights would be stripped from religious educational institutions.
The U.S. Conference of Catholic Bishops (USCCB) has come out strongly against the Equality Act stating that it “would hurt more people than it helps.”
Archbishop Joseph Kurtz of Louisville, Ky., chairman of the USCCB Committee for Religious Liberty, along with two other bishops, James Conley of Lincoln, Neb., and Frank Dewane of Venice, Fla., wrote to Congress stating that:
“The Equality Act would impose sweeping regulations to the detriment of society as a whole…[and remove] women and girls from protected legal existence. Furthermore, the act also fails to recognize the difference between the person — who has dignity and is entitled to recognition of it — and the actions of a person, which have ethical and social ramifications. Conflating the two will introduce a plethora of further legal complications.”
The three bishops, along with Bishop Michael Barber, SJ, of Oakland, Calif., also wrote to Congress:
“The Equality Act regulates a huge new swath of religious activity and facilitates as ‘public accommodations’ and transforms the conditions by which hundreds of thousands of faith-based entities partner with the federal government to serve the common good. It accomplishes these goals while bringing the daunting power of the federal government to bear against religious people and groups with nonconforming views about marriage, sexuality, and gender.”
The bill has been approved by the House Judiciary Committee and, with all Democrats voting in favor, it passed the House May 17. My political sense is that it will fail in the Republican-controlled Senate, either by vote or due to the majority leader, Sen. Mitch McConnell, refusing to clear it for a vote. In any event, it is a dangerous piece of legislation that has the potential of turning religious liberties upside down
Discrimination is bad, but what is worse is that the Democrats want to give extra rights to gender-confused individuals at the expense of religious freedom or, for that matter, common sense.
(You can reach Mike at: DeaconMike@q.com.)
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