House passes Equality Act but LGBT+ bill faces murky future in Senate

The US House of Representatives has passed a bill to ban discrimination based on sex, sexual orientation and gender identity. But it faces a murky path through the 50-50 Senate before it can make its way to President Joe Biden’s desk.

Even if all 50 Democratic and Democratic-caucusing Independents in the Senate voted in favour of the so-called “Equality Act”, it would still need the backing of at least 10 Republicans to clear the upper chamber’s traditional 60-vote threshold for final passage.

“I hope it will not be lost in the politics of the Senate,” House Majority Leader Steny Hoyer said on Thursday shortly before the bill’s passage.

That appears to be wishful thinking.

Senator Mitt Romney of Utah – perhaps the Republican in Washington most willing to reach across the aisle on politically controversial issues over the last two years – has stated his opposition to the bill over the absence of “religious liberty protections” in its language.

“Sen. Romney believes that strong religious liberty protections are essential to any legislation on this issue, and since those provisions are absent from this particular bill, he is not able to support it,” a spokeswoman for the senator told the Washington Blade last week.

Senator Susan Collins of Maine, the lone Republican co-sponsor of the bill in 2019, has pulled her support of it this time around. Ms Collins told the Blade this week that the 2019 bill was meant to be the starting point for negotiations but that the other side did not honour their commitment to making improvements.

The Equality Act is Democrats’ attempt to bake into the legislative code what the Supreme Court decided in the landmark Bostock v Clayton County case in 2020: the 1964 Civil Rights Act’s language protecting employees and clients from discrimination based on “sex” extends to gay, lesbian, and transgender people.

Rhode Island Democratic Congressman David Cicilline, who is gay, introduced the bill last week along with Senator Jeff Merkley of Oregon.

Three Republican Congressmen – John Katko and Tom Reed of New York as well as Brian Fitzpatrick of Pennsylvania – voted with all 221 Democrats to pass the bill in the House.

The Equality Act has ignited fierce opposition from social conservatives in the House GOP, including from Marjorie Taylor Greene , the freshman congresswoman from Georgia who taunted a Democratic colleague on Wednesday by hanging a transphobic sign in the hallway outside their offices in Washington.

On Wednesday evening, freshman Democratic Congresswoman Marie Newman of Illinois – whose daughter is transgender and whose office is across the hall from Ms Greene’s in the Longworth House Office Building – posted a video to her social media accounts supporting the Equality Act and taunting Ms Greene for her opposition by erecting a trans pride flag outside the door of her own office.

“Our neighbour, @RepMTG, tried to block the Equality Act because she believes prohibiting discrimination against trans Americans is ‘disgusting, immoral, and evil,’” Ms Newman tweeted in a caption for the video.

“Thought we’d put up our Transgender flag so she can look at it every time she opens her door,” Ms Newman wrote.

Ms Greene subsequently took the feud to another level, purposely misgendering Ms Newman’s daughter and pasting a sign outside her own door (facing Ms Newman’s office) that reads: “There are TWO genders: MALE & FEMALE. ‘Trust the science!’”

“Our neighbour, @RepMarieNewman, wants to pass the so-called “Equality” Act to destroy women’s rights and religious freedoms,” Ms Greene tweeted as the caption to her own video mimicking Ms Newman’s videography and hand gestures, and smile nearly shot for shot.

“Thought we’d put up ours so she can look at it every time she opens her door,” the tweet continued.

Ms Greene also separately quote-tweeted a video from Ms Newman of her speech on the House floor supporting the Equality Act.

“As mothers, we all love and support our children. But your biological son does NOT belong in my daughters’ bathrooms, locker rooms, and sports teams,” Ms Greene wrote, referring to Ms Newman’s daughter, Evie.

Speaker Nancy Pelosi grew visibly upset at her weekly press conference on Thursday while discussing the Equality Act and Ms Greene’s latest publicity stunt.

“It is necessary. I wish it weren’t. It breaks my heart that it is necessary,” Ms Pelosi told reporters of the Equality Act on Thursday.

“And in fact, we had ...” she said, pausing, audibly sighing, and looking down at the podium before continuing, “... a sad event here even this morning demonstrating the need for us to have respect. Not even just respect, but take pride. Take pride in our LGBTQ community.”

Combined with several state-enacted anti-discrimination laws, the Supreme Court’s broad definition of sex-based discrimination to cover sexual orientation and gender identity – promulgated last year by a 6-3 majority in which Chief Justice John Roberts and Trump-appointed Justice Neil Gorsuch joined the court’s four liberal justices – has offered a broad shield for LGBT+ Americans. But Supreme Court decisions are not statute and can be reversed in future cases.

Liberal activists have also argued that while the Supreme Court’s Bostock v Clayton County decision protected LGBT+ Americans from workplace discrimination, there are still gaps in anti-discrimination laws outside of employment.

“In 29 states, Americans can still be evicted, be thrown out of a restaurant, or be denied a loan because of who they are or whom they love,” Mr Merkley said in a joint statement with Mr Cicilline last week upon their introduction of the Equality Act.

Hardline conservatives in Congress claim the Equality Act would put women and girls in danger from male predators pretending to be transgender, allowing men to haunt women’s bathrooms, locker rooms, and other private spaces. They have also said it would ruin the integrity of women’s and girls’ sports because transgender women who were born with male genitalia have biological athletic advantages.

In a tweet on Thursday, Arizona Republican Congresswoman Debbie Lesko accused Democrats of putting “radical identity politics over the safety and well-being of women and girls in schools, sports, domestic violence shelters, locker rooms, [and] bathrooms”.

Human rights activists have dismissed the fears over women’s safety in private spaces as a red herring, pointing to anti-discrimination laws in New York City and California that have not led to any uptick in incidents of harassment.

“All Americans must be treated equally under the law,” Ms Pelosi said in a statement about the legislation, “not just in the workplace, but in every place.”