Why Christians Should Support the Equality Act
The US House recently passed H.R. 5, familiarly known as the “Equality Act.”[1] In short, this legislation codifies (and thus further clarifies) statutory civil rights protections against certain discrimination based on gender, sexual orientation, sexual identity, and medical status (pregnancy, e.g.). It furthers what the Supreme Court (in an opinion by Trump appointee Justice Gorsuch) found in the Bostock decision[2]: that civil rights protections against discrimination based on “sex” include discrimination based on sexual orientation or identity. So, for example, a gay man or a trans woman cannot be terminated from employment because he does not conform to certain assumptions about masculinity.
Christians have long been on the front lines of efforts to secure civil rights and essential dignity for everyone. In addition to the obvious examples such as Dr. Martin Luther King, there are his progenitors such as Richard Allen,[3] and the theologian Howard Thurman.[4] It’s hard to consider a belief more central to Christian thought than a belief in the value and dignity of every human life, even for those who do not live Christian lives, and even for those who have made poor decisions in life.[5] For all of us are imperfect in some way, and all of us are worthy of love and forgiveness and empathy.[6]
The Catholic Catechism, specifically referring to sexual orientation, has an unfortunate negative view of same-sex attraction. Even there, though, it allows LGBTQ people “must be accepted with respect, compassion, and sensitivity, and that “every sign of unjust discrimination in their regard should be avoided.”[7] This is aligned with a Christian belief that human intrinsic worth is not tied to human behavior.[8] And without question, the fruits of Christian faith should include love and compassion.[9]
So, it’s initially odd that there seems to be broad concern that harm to Christian worship could arise from legislative codification of the proposition that everyone has a right to employment without persecution, harassment, or fear of losing their job due to race, religion, ethnicity, or sexuality or gender identity. After all, the Equality Act simply asserts civil rights protections for LBGTQ people and for people with medical conditions (including pregnancy).
The Equality Act, in doing so, doesn’t codify any theory about what proper sexuality consists of, about gender or gender identity, or interfere with the establishment or practice of religion within a civil and democratic society any more than other civil rights laws may. Indeed, a democratic society with full respect for civil rights can and should allow for different views on gender and sexuality. What it cannot allow for, though, is to deprive those who live differently from the same civil rights as others. And so, a broad variety of Christian faith leaders have expressed support for the Equality Act.[10]
It’s unfortunate to see opposition to the Equality Act rooted in an assumption it requires parties to change their beliefs on sexuality, as distinct from regulating how they treat people of different beliefs and identities. But the law, as all laws, only governs the latter. An institution can continue to hold, and to advocate for various perspectives on gender and sexuality. What the legislation would do is restrict those institutions from imposing those beliefs through practices proscribed by the Civil Rights Act.
It is true, in some respects, that the more important debate is about beliefs and positions, though. And in particular whether certain beliefs are harmful or helpful. Some institutions believe advocating celibacy for LBGTQ persons, or even attempts at conversion of their orientation, are helpful because to be LBGTQ is, as the Catechism put it, “fundamentally disordered.” And so too, the argument would go, refusing to employ or provide public accommodations for such “disordered” people helps hold a societal line against what may seem like a devastating flood of harmful beliefs that “it’s OK to be gay.”
I don’t doubt this belief can in some cases be sincerely held, but I suspect in other cases this fig leaf of good intentions is only covering up fear and prejudice. There is absolutely nothing loving about a belief a person is “fundamentally disordered.” And so as much as the Catechism inveighs against “unjust discrimination,” it undoes that loving standpoint with that accusation.
A nun who ministers to LBGTQ and transgender persons wrote eloquently of their humanity, their struggles, and the spiritual insights they’ve gained from coming to peace with their identity, and at knowing they are loved by God even though they feel love and understand themselves differently. As she notes, many transgender people, far from being emotionally disordered, have instead made a “profoundly risky and courageous decision to live from a place of truth rather than untruth.” [11]
Respect for how people are making sense of themselves and their lives doesn’t require any particular political or cultural allegiance. One can feel uneasy about the more doctrinaire aspects of so-called “woke” cultural theory (I do) and still support basic equality. Even if some of the political undercurrents or cultural communities aligned with support for the Equality Act are rooted in vastly different philosophical views (even problematic views like Marxism), a love for justice should be enough to find common ground with advocates for LBGTQ civil rights.[12]
Nonetheless, there are prominent Christian objections to the Equality Act, and these generally take two forms. The first, less defensible, is one that accepts much of what I noted above and yet then elides it to, in effect, return to a position centered on objections to LBGTQ lifestyles or slightly veiled culture war arguments rooted in antipathy to the “normalization” or affirmation of LBGTQ identities.
For example, the U.S. Council of Catholic Bishops write in shared opposition to unjust discrimination against LBGTQ people. But they then go on to argue the Equality Act is not necessary because ““LGBT” people are not subject to systemic discrimination on the scale that has historically warranted the creation of a new federal policy, such as was necessary when the Civil Rights Act was passed,” and to note, in effect, that some celebrated people are gay so opposition to LBGTQ people is overstated.[13]
For one, the legislative findings noted in support of the Equality Act note LBGTQ people do in fact face invidious discrimination in access to public accommodations, employment and in other contexts. That Elton John or Martina Navratilova are celebrated persons really has little bearing on how a less famous schoolteacher or clinic employee might be treated.
Moreover, this converts the question into a political one rather than one of first principles. Even if discrimination against LBTGQ people was isolated and rare, the Council should — in theory — be supportive of a law that supports the very principle against unjust discrimination contained in the Catechism. Indeed, as one prominent Catholic commentator noted, moral questions should not necessarily be guided by poll numbers or popularity contests.[14] So it’s odd to see the USCCB do so here.
It’s unfortunate this argument comes from an institution within the Christian community. Any LBGTQ person reading this statement, particularly a Catholic, would reasonably feel hurt, unwelcomed, alienated, and their very real experiences of discrimination discounted.
That message of exclusion is, as they say, “not a good look” for a faith that asks us to welcome the stranger, and to extend love to all.[15] It has the ring of placing the institutions of the Church on a higher pedestal than the welfare of the souls the Church is supposedly organized to love and nurture.
The second set of objections are more understandable, to the extent they are derived from a reading of the legislation itself. Just because the goals of the Equality Act are morally sound does not mean the terms of the legislation navigate to those goals as effectively, accurately, or as fairly as they could. The parade of bad outcomes alleged to follow from the law are indeed bad, e.g., a biological male enjoying a legal right to expose himself in a women’s locker room would be a bad thing. And the Equality Act does leave some questions on that point answered in ways that could be frustrating for women.[16] That legislation is imprecise or imperfect, though, is a cause for refining it not for full-on opposition to civil rights protections for LBGTQ persons.
Legal arguments against the Equality Act note two main points: 1) instead of proscribing harmful (civil rights law often uses the term “invidious”) discrimination, the Equality Act proscribes all distinctions based on biological sex; 2) the Equality Act runs afoul of the free exercise of religion, including by explicitly stating the Religious Freedom Restoration ACT (RFRA) “cannot provide a basis” for challenging the ‘application or enforcement’ of the act.”[17] But these outcomes do not necessarily follow from the Equality Act. Moreover, that some attempts to apply the Equality Act might not survive legal challenge is no reason to oppose its enactment.[18]
It is true the Equality Act states that “(with respect to gender identity) an individual shall not be denied access to a shared facility, including a restroom, a locker room, and a dressing room, that is in accordance with the individual’s gender identity.” And if “gender identity” were something any person could claim regardless of their personal and cultural identity and context, one might be able to conjure a scenario where people who are in all aspects male sue for access to women’s bathrooms and the like.
But the Equality Act does not so define “gender identity” — it says “‘gender identity’ means the gender-related identity, appearance, mannerisms, or other gender-related characteristics of an individual, regardless of the individual’s designated sex at birth.” Under the Equality Act, a male person, whose identity, appearance, mannerisms, and other gender-related characteristics remain male, has a male gender identity. That would include both biological males and trans males (i.e., persons designated female at birth), but it would exclude someone whose appearance, manner, etc., are all male-identified.
That is, the Equality Act does not “erase” gender differences, in any context including civil rights law. After all, civil rights laws have long prohibited discrimination “on the basis of sex” and public accommodations have been able to maintain gendered restrooms, locker rooms and the like.[19] It simply clarifies that law protects the civil rights of biological women and trans women alike; it does not require affordances set aside for women to be made available in every case on equal terms to men (whether biological or transitioned men).
The religious liberty objections also seem overstated. For one, what religious liberty is offended by an obligation to comply with generally applicable civil rights laws? As noted above, if the religious interest claimed is a right to express the view that “gay is not OK,” that seems an odd message for Christians whose gospel notes all humans are imperfect (and yet all are also worthy of God’s love).[20]
Moreover, under the Equality Act, religious institutions are still free to argue for that understanding of human sexuality. They may not express that view through employment discrimination or other civil rights violations, but they can certainly post all they wish about it online. The objection to the Equality Act here elides the distinction between restrictions on civil rights violations and restrictions on belief, ritual, or speech.
I noted in an earlier blog that many religious institutions expressly support distinctions between the role of the church and that of the state, e.g., the role of defining and enforcing civil rights laws.[21] So why object to the Equality Act carrying out that role? Religious institutions can and should advocate for laws that reflect their views of what is good, and disagree with those that do not, but that’s not the same as disobeying laws once enacted.
Finally, it’s reasonable to ask how much of the concern with burdens on religious freedom is simply speculative at this point. The Equality Act leaves in place an exemption allowing religious employers to prefer hiring members of the same religion. Presumably co-religionists share similar beliefs on gender and sexuality, meaning institutions could still, under the law, apply a preference for candidates holding those beliefs. It’s not at all clear, either, that religious-affiliated health institutions would face a raft of lawsuits compelling them to perform on-demand gender reassignment surgery.[22]
Far from being a slippery slope that would lead to either legal mandates to erase beneficial gender distinctions, the Equality Act could actually put certain distinctions on firmer footing. If women and trans women are equally women, for example, then distinctions made between men and women necessarily can become fairer and any exclusions they work less harmful to all women.
That’s not to say the Equality Act doesn’t raise important practical concerns, both with respect to free exercise and otherwise.[23] Particularly by removing the clarifying standard of the RFRA (burdens on religious practice must serve a compelling government interest and be narrowly tailored to do so), I do think the Equality Act could do more to clarify what scope of potentially implicated religious practices, under what justification, could continue even after its passage and enforcement.
For example, would the Equality Act prohibit states from working with private adoption charities who do not place children with same-sex couples? That could be a principled approach, though practically it may harm children who would benefit from placement with a loving family. Would it prevent parents from making medical decisions for children experiencing gender dysphoria? That could not only create practical challenges but reduce parental discretion with state authority in ways that civil rights laws don’t ordinarily do. These are harder questions than proponents of the Equality Act may admit. And courts will undoubtedly confront them, as may future federal and state legislatures.
That type of fine-tuning, which may well result in decisions proponents of the Equality Act find concerning, is just another reason though why on balance Christians should support the Equality Act. Those burdened have resort to the courts may be redeemed in cases that have merit, and they may be required to conform to the law for those that do not.
Indeed, it’s worth asking whether the Christian perspective on any matter of public policy is necessarily to evaluate it on the basis of whether it furthers the interests of Christians, rather than whether it furthers the interests of the community as a whole. This perspective converts Christians into simply another special-interest group competing to have the state affirm its preferences, rather than persons who have been changed by Christ to see the world in a new way and are dedicated to service to others.[24] And to defend religious liberty should be to defend it for all, not to impose one view on all.
Valid concerns with the Equality Act can be dealt with in its application. Too many of the concerns expressed, however, seem invalid. In their gentler form, these concerns manifest as angst about changing views on sexuality and gender. But during the prayers at a Eucharist, just after the Lord’s Prayer, the priest announces that, in effect, Christ shall protect us from all anxiety. It’s entirely possible the call to treat LBGTQ people fairly under the law is a call to release such anxiety, reflect on God’s universal love, and will thus make things better in precisely the ways Christians would wish.
In their less gentle form, some people of faith see even basic kindness towards LBGTQ people as unfortunate capitulation to cultural change, one that compels them to act out falsehoods and will lead to untold ruin.[25] And even beyond that, there are political forces even within “Christian” communities who elevate grievance and bigotry.[26] That may be, but civil rights laws exist precisely to counter grievance and bigotry, and there can be no accommodation of such things in either love or the law.
There are, in fact, Christian organizations who opted to step back and recognize their mission can be pursued without needing to adopt a formal position on questions of gender and sexuality, i.e., by elevating considerations of basic respect, kindness, service, and care for those less fortunate.[27] And within communities of Christians, dialogue that elevates these considerations should bear fruit.
This is ultimately an intra (and inter) faith dialogue, not a question of law or public policy. Those of us who feel Christianity can and should be kind and welcoming to people who identify as a gender different from that of their birth will still have to persuade others on the grounds of Scripture, tradition, church teachings, and individual conscience. Those opposed to the Equality Act, then, are not only indicating opposition to other views on gender and sexuality, but opposition to the proposition that they should have to win their argument on the same grounds.
That is, Christians should support the Equality Act precisely because it can accommodate this religious dialogue. In distinguishing between unjust discrimination and endorsement of a given view of sexuality and gender, it preserves freedom for discussion of Scripture and tradition to govern how Christians work out views on gender and sexuality. And more importantly, it preserves individual rights of conscience to form one’s own views.[28]
The Equality Act says, in sum, that the law will preserve the civil rights of those who exercise choice and/or hold a given sexual identity or gender (including non-binary), because such freedom is inseparable from the dignity of a human person. This aligns well with Christian views on the dignity of the human person. And to the extent the law reduces unjust discrimination, that’s good as well. If grievance and bigotry are, as they must be, left out of the equation, the Equality Act adds up.
[1]https://www.congress.gov/bill/117th-congress/house-bill/5/text
[2]https://en.wikipedia.org/wiki/Bostock_v._Clayton_County
[3]https://www.varsitytutors.com/earlyamerica/early-america-review/volume-2/richard-allen-and-african-american-identity
[4]https://www.bu.edu/articles/2020/who-was-howard-thurman/
[5]See, e.g., Luke 15:11–32 (parable of the prodigal son).
[6]See, e.g., Matthew 25:36 (“I was in prison and you came to visit me”).
[7]http://www.vatican.va/archive/ccc_css/archive/catechism/p3s2c2a6.htm
[8]See ,e.g., St. John Paul II, On the Hundredth Year [Centesimus annus], no. 11 (“Human persons are willed by God; they are imprinted with God’s image. Their dignity does not come from the work they do, but from the persons they are”).
[9]Galatians 5:22–24 (“But the fruit of the Spirit is love, joy, peace, patience, kindness, goodness, faithfulness, gentleness, self-control…”).
[10]See, e.g., https://www.hrc.org/resources/faith-leaders-support-the-equality-act; https://www.americanprogress.org/press/release/2021/02/24/496315/release-faith-leaders-speak-support-equality-act/ ; see also https://swilsonsmith.medium.com/love-and-the-lords-name-homily-for-the-3rd-week-of-lent-2021-3eb3a04c80e0 (homily in support of the Equality Act).
[11]https://www.americamagazine.org/faith/2021/02/25/transgender-catholics-lgbt-religious-sister-240106
[12]See Bishop Robert Barron, “Acknowledging an Abyss, Finding a Bridge,” https://www.wordonfire.org/resources/article/acknowledging-an-abyss-finding-a-bridge/28601/ (“beginning with the Hebrew prophets and coming directly through Jesus himself and then into the great Christian tradition, we find the conviction that seeking justice is congruent with the will of God”).
[13]https://www.usccb.org/issues-and-action/marriage-and-family/marriage/promotion-and-defense-of-marriage/upload/Equality-Act-Backgrounder.pdf
[14]Bishop Robert Barron, “Gay Marriage and the Breakdown of Moral Argument,” https://www.wordonfire.org/resources/article/gay-marriage-and-the-breakdown-of-moral-argument/460/ (“[T]he citation of poll numbers in regard to a moral issue is nothing but a form of bullying: we’ve got you outnumbered”).
[15]Romans 13:10 (“Love does no wrong to a neighbor”).
[16]See, e.g., The Economist, “Who Could Object to the Equality Act,” October 2020, online at: https://www.economist.com/united-states/2020/10/22/who-could-object-to-the-equality-act (“A well-intentioned effort by Democrats to protect trans Americans risks discriminating against female Americans”).
[17]H.R. 5, Section 1107; https://www.congress.gov/bill/117th-congress/house-bill/5/text
[18]Indeed, in the area of racial discrimination cases, we’re more than 50 years after the Civil Rights Act of 1964, and courts continue to have a role in ruling on the constitutionality of particular measures designed to curtail harmful racial discrimination. See, e.g., Schuette v. Coalition to Defend Affirmative Action, 572 U.S. 291 (2014) (a state may, within areas governed by state law, make certain form of affirmative action illegal in public employment, public education, or public contracting purposes).
[19]This is not just the Civil Rights Act of 1964; at least 15 states have some form of equal rights amendment to their state Constitution. https://en.wikipedia.org/wiki/Equal_Rights_Amendment#State_equal_rights_amendments. I am not aware of any law or judicial ruling prohibiting gender-segregated facilities in those states.
[20]See, e.g., Romans 3:9
[21]https://chuckc-18299.medium.com/candle-not-a-torch-reflections-on-three-isms-58cb869592c7
[22]See https://www.commonwealmagazine.org/wrong-message (“We would assess the risk of being compelled to do these surgeries as very low,” says Fr. Charles Bouchard, the senior director in theology and ethics at the Catholic Health Association.”
[23]In what some may consider a glaring oversight, this post does not deal with the topic of abortion. That’s primarily for space and focus reasons, not to excuse any effect the Equality Act may have at constraining the rights of medical professionals not to perform abortions or other procedures that violate their conscience. Would I do so, I would want to emphasize the consistency between affirmation for LBTGQ persons and affirmation for the rights of unborn persons.
[24]See, e.g., Galatians 6:2 (“Carry each other’s burdens, and in this way, you will fulfill the law of Christ”)
[25]See, e.g., Rod Dreher, A Top Pastor’s Culture War Surrender; online at: https://www.theamericanconservative.com/dreher/jd-greear-surrender-culture-war-pronouns-southern-baptist/ (“the ideology that compels us to use “preferred pronouns” is one that leads to the mutilation of young bodies and the ruin of young lives”).
[26]Michael Gerson, “The GOP is Now Just the Party of White Grievance,” Washington Post, March 1 2021, https://www.washingtonpost.com/opinions/the-gop-is-now-just-the-party-of-white-grievance/2021/03/01/67679480-7ab9-11eb-85cd-9b7fa90c8873_story.html. I think Gerson’s framing of a guideline for Christian responses is particularly useful: “Christian anthropology does not dictate specific policies. But it requires Christians to ask: How should we act in the political realm if every human being we encounter — everyone we admire and everyone we disdain; everyone we agree with and everyone we disagree with; everyone we love and everyone we hate — were actually the image of Christ in our midst?”
[27]See Ruth Graham, “Major Evangelical Adoption Agency Will Now Serve Gay Parents Nationwide,” New York Times, March 1, 2021, online at: https://www.nytimes.com/2021/03/01/us/bethany-adoption-agency-lgbtq.html?smid=tw-share (“We may lose some donors. But the message we’re trying to give is inviting people alongside of us. Serving children should not be controversial”).
[28]See also, Catechism of the Catholic Church, n.1747 (“The right to the exercise of freedom, especially in religious and moral matters, is an inalienable requirement of the dignity of man”). http://www.vatican.va/archive/ccc_css/archive/catechism/p3s1c1a3.htm
