Amend The US "Equality Act"

Protections for lesbians, gays and bisexuals are long overdue, but this bill devastates women's rights and undermines LGB protections by conflating 'gender identity' with 'sex.'

Since 1974, when U.S. Representatives Bella Abzug and Ed Koch first introduced the Equality Act (H.R.14752) in the House, to 2019 when the Equality Act (H.R. 5) passed the House for the first time (but was ignored by the Senate), lesbians, gays and bisexuals have been working to get ‘sexual orientation’ included in federal civil rights protections, specifically the Civil Rights Act of 1964. Depending on whether you look at housing or public accommodations, 27 or 28 states still lack protections for sexual orientation—meaning LGB people can be denied housing or services based on their sexuality, with no recourse to federal civil rights remedies. Those protections are urgently needed.

But since 2007, ‘gender identity’ has been included along with ‘sexual orientation’ in the repeatedly introduced Equality Act (EA), and crucially, H.R. 5 bears little resemblance to the EA of 1974.

Unfortunately, in the current EA, ‘gender identity’ is conflated with ‘sex’ in the proposal, effectively decimating women’s rights.

We’ve united with Feminists in Struggle and others to form the Coalition for Feminist Amendments to the Equality Act, and have written to the Senate stating why we believe that the EA should be amended. We reproduce that letter here for your information, and encourage supporters to write and call both their Senators and Representatives, urging them to support the Feminist Amendments to the Equality Act developed by Feminists in Struggle, and supported by LGB Alliance USA.


November 9th, 2020

To members of the U.S. Senate,

The late Justice Ruth Bader Ginsberg devoted her life to fighting for legal protections on the basis of biological sex. Congress should honor that legacy, and the legacy of so many other women who’ve fought to secure our rights, but most importantly, Congress has a duty to uphold our most basic human rights protections. The current version of the Equality Act (HR 5), now pending in the Senate Judiciary Committee, will risk erasing sex as a protected class in law, weakening protections and undermining the existing rights of females as a unique class, and the progress that’s been made toward achieving equality.

The Coalition for Feminist Amendments to the Equality Act (“CoFA”) is a national alliance of feminist and LGB organizations and individuals. We write to urge hearings on our proposal to amend the Equality Act (to receive testimony on its many problematic provisions), and to provide vital input on how those issues may be fixed. The Feminist Amendments expands civil rights laws to cover lesbians, gay men, bisexuals, transgender, and other individuals who don’t conform to gender stereotypes (roles traditionally imposed based on one’s sex), while continuing to uphold sex-based protections. In doing so, everyone’s rights are protected.

We support many of the positive provisions put forth by the Equality Act. Federal statutory protections for lesbians, gay men, and bisexuals based on sexual orientation are long overdue. We applaud the closure of the loophole that allows the use of religious freedom as legal grounds to allow any person to flout civil rights laws. 

At the same time, the Equality Act’s attempt to protect transgender individuals from discrimination — through the creation of “gender identity” as a protected class — creates ambiguity, confusion, and a conflict of rights that must be addressed. The term “gender identity” is subjective, in that it describes a state of mind that may or may not be manifested in dress, grooming, or behavior. This subjectivity opens a loophole ripe for abuse. As it’s used in HR-5, the term provides no objective test useful to a court, which will ultimately litigate the conflicts sure to arise from this legislation. Failure to address these conflicts will threaten long-settled statutory and case law developed to protect the rights of females as a distinctive class.  

More importantly, “gender” or “gender identity” is conflated with “sex” throughout the bill,  and risks eliminating sex as a protected class in civil rights law. Merging two distinct groups — who have different sets of experiences, discrimination and marginalization — is detrimental to preserving human rights protections currently afforded to females as a uniquely subjugated class.

Female only facilities are an important legacy of women’s organizing, key to the protection of the female sex against male-pattern violence and to the broader participation of women in public life. It’s vital that these basic human rights provisions remain in place.  

Male-pattern violence against females is so well-documented that Congress passed the Violence Against Women Act in an attempt to protect them from sexual and physical assault. However, such predatory violence remains pervasive as demonstrated by the “Me Too” movement and numerous well-documented instances of such violations by males in the entertainment business, the military, and even Congress. A Swedish study showed that this pattern of behavior is not mitigated by male-to-female sex reassignment surgery.  

Moreover, the current bill’s “gender identity” provisions require that males who identify as women, including those with intact male genitalia (85-90% of males who identify as women retain male genitalia), must be admitted, solely on the basis of “self-identification,” into female facilities, such as,  rape crisis centers, battered women’s shelters, homeless shelters, prisons, hospital rooms, communal showers, changing rooms, restrooms, and nursing homes.

Social scientists and international policy bodies have underscored the importance of maintaining separate statistics based on sex, as a key means of tracking disparities between the sexes, recording accurate data, and measuring our progress on addressing sex-based discrimination. In addition, there are multiple instances, such as within the context of health care, where having accurate information about a person’s sex, is vital, even life-saving.

By eliminating sex as a protected class, the bill, as currently written, would:

·   Undermine targeted remedies for the exclusion or under-representation of women and girls in education, and in jobs and professions traditionally held by men

·   Eradicate competitive women’s sports by undermining Title IX protections

·   Make it impossible to measure (and remedy) disparity between the sexes, such as the pay gap and domestic violence

·   Prevent the gathering of accurate crime and health statistics

See attached fact sheets for more information on the impact of erasing sex as a protected class in civil rights law, by allowing the concept of “gender” or “gender identity” to override “sex.”

The Feminist Amendments eliminate “gender identity” and instead establish two new categories in civil rights law: “sexual orientation” and “sex-stereotyping.” Doing so more effectively protects all classes, while not negating sex-based protections. 

These amendments contain clear definitions of “sex” and “sex-stereotyping,” that will preserve female facilities and programs, allowing women and girls to participate fully in public life. (See attached.)

At the same time, the Feminist Amendments protect lesbians, gay men, bisexuals (and all people who don’t conform to imposed gender roles and stereotypes), including transgender people, from discrimination in employment, housing, credit, and in places of public accommodation.

These amendments also allow for the establishment of “gender neutral” facilities for  individuals who may feel safer or more comfortable in such spaces, so long as the availability and access to female only facilities is not diminished. Thus, these amendments allow each protected class to continue to make progress toward achieving true equality.

One hundred years after women’s suffrage, women still get paid less, are denied equal opportunities in the workplace, and continue to be underrepresented in many fields and positions of economic and political leadership in our society, because of their sex. Females still suffer disproportionately from domestic violence and rape because of their sex. Discrimination on the basis of sex will not end if we eliminate sex as a stand-alone protected class. 

No Senate action should be taken on the Equality Act without hearings to gather evidence on the conflicts outlined in this letter. We offer the Feminist Amendments to the Equality Act as our contribution to this much needed work.  

We and members of our constituent organizations are prepared to sit down with you and members of your staff to discuss our concerns and appropriate strategies we might collaborate on to secure the hearing anticipated in the previous paragraph.  

It is our fervent wish that you honor the legacy of our most revered jurist RBG by adopting the Feminist Amendments to the Equality Act to continue her fight to protect women and girls on the basis of sex.  

Sincerely,

Ann Menasche

Feminists in Struggle

M. Lynette Hartsell

LGB Alliance USA

Co-Chairs, CoFA

Further reading:

Reasons for Safeguarding Concerns with Gender Identity ‘SELF-ID’

Article on Impacts to Title IX and Women’s Sports

Martina Navratilova and others Ask Lawmakers to Protect Women’s Sports

The Coalition for the Feminist Amendments is also holding a Forum on the Amendments, Saturday, November 14th from 1-3 pm Pacific time. Only $5.

Preserving Sex-Based Rights Forum