What You Need to Know About H.R. 5 (“The Equality Act”)

What You Need to Know About H.R. 5 (“The Equality Act”)

By H. Robert Showers, Esq. and William R. Thetford, Esq.

 April 27, 2021

In the wake of the new administration, Congress has taken up H.R. 5, entitled the Equality Act by its supporters. Evangelical Protestant, Catholic, and Orthodox Jewish groups, as well as homeless shelters, Christian businesses, the Church of Latter-Day Saints, and the Seventh-Day Adventist Church have all raised serious concerns about this legislation for religious liberty and other reasons.^[1] While the highly controversial legislation has been introduced in previous years, this year the new administration has made this legislation a priority. Thus, the House has already passed it, and if it is given a straight party-line vote in the Senate, where it is now being considered, it would become law.

Many of our clients (individuals, businesses, nonprofits, and churches) have asked what this Act will mean for them if passed. The information airways are replete with the arguments and opinions on legislation like the Act. If you have read commentary on the Act you may be surprised by the wide-ranging predictions of what the Act means or what it will do. In the midst of all the confusion and controversy, it is important to cut through the news cycle and evaluate what the law actually says to be able to understand its true impact.

What the Text of the Act Says & What the Act Will Do

Unfortunately, a straightforward look at the text of the Act immediately explains the reason for the wide range of projections. The Act’s main provision is simple but far reaching. It takes a host of Federal laws and replaces the word “sex” with the phrase “sex (including sexual orientation and gender identity).” Rather than mandate or prohibit a few specific actions, the act fundamentally rewrites Federal law in dozens of existing statutes and categories. Thus, there are several aspects of the Act that will immediately take place if passed and others that will not be realized for years as courts interpret and debate the implications of this broad change.

Some might ask what impact the Act will have in light of the recent Supreme Court decision, Bostock v. Clayton County, which interpreted Title VII of the Civil Rights Act of 1964 prohibiting discrimination on the basis of “sex” to inherently also include discrimination on the basis of “sexual orientation and gender identity.” Moreover, a recent executive order from President Biden directs the federal government to utilize this interpretation in other areas as well.

The answer is: what the Supreme Court did narrowly in Bostock for one area of the law with the promise of accompanying religious protections, the Act promises to do broadly across federal law, and expressly removes religious protections. 

Here are the six clear impacts of the law that arise directly out of the text of the Act.

   1. The Act applies comprehensively to actions across multiple areas of the law.

The law would prohibit discrimination on the basis of sexual orientation or gender identity in public accommodations (Title II), public facilities (Title III), public education (Title IV), federally funded programs (Title VI), housing (Fair Housing Act), credit and lending, and jury selection. The Act broadly defines gender identity as “the gender-related identity, appearance, mannerisms, or other gender-related characteristics of an individual, regardless of the individual’s designated sex at birth.”

   2. The Act contains no religious exemption and expressly annuls the application of the Religious Freedom Restoration Act from any claim alleging discrimination on the basis of sexual orientation or gender identity under the Act.

 The text reads: “The Religious Freedom Restoration Act of 1993 (42 U.S.C. 2000bb et seq.) shall not provide a claim concerning, or a defense to a claim under, a covered title, or provide a basis for challenging the application or enforcement of a covered title.”

“Covered title” is defined as all the areas of the law rewritten by the Act (see point 1).

The Religious Freedom Restoration Act (RFRA) was a bipartisan Act introduced by then-congressman Chuck Schumer (now Senate Democratic Majority leader). It was passed unanimously by the house and almost unanimously by the Senate and was signed by President Clinton. RFRA was intended to make it clear legislatively, in the wake of the controversial Supreme Court Decision Employment Division v. Smith, that First Amendment religious liberty would be treated like other fundamental rights in the Constitution. Under RFRA, while religious freedom is not absolute, the government would only be able to substantially burden such liberties if the government could satisfy the “strict scrutiny” test, that is, prove the government action was (A) necessary to achieve a compelling government interest, and (B) narrowly tailored to reach that interest in the least restrictive means.

The Act’s language is clearly intended to cause the provisions for LGBTQ individuals to trump RFRA. However, the language is so broad that it may cause RFRA to be inapplicable to any claim of discrimination under the broad swath of Federal laws impacted by the Equality Act (i.e., any form of discrimination in employment, housing, public accommodations etc. and for reasons that have nothing to do with LGBTQ individuals).

   3. The Act compels schools, many nonprofits, businesses, and others to allow access to restrooms and other private facilities in accordance with an individuals’ gender identity, regardless of biological sex. 

In an apparent catch-all provision near the end of the act, the Act establishes a number of rules that apply to multiple areas of the law, including the following:

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. H.R. 5, Sec. 9(b)(2).

This provision appears to apply to all the entities covered by the Act, including public schools, federally funded institutions, public accommodations, and others.

Importantly, public accommodations subject to this and other provisions, already a fairly broad category, is expanded under the Act to explicitly include:

• any establishment that provides a good, service, or program, including a
  • store,
  • shopping center,
  • online retailer or service provider,
  • salon,
  • bank,
  • gas station,
  • food bank,
  • service or care center,
  • shelter,
  • travel agency,
  • funeral parlor; or
• any establishment that provides health care, accounting or legal services;
• any train service, bus service, care service, taxi service, airline service, station, depot or other place of or establishment that provides transportation services. H.R. 5, Sec. 3(a)(4)-(5).

Some commentators are concerned that under the new definition of public accommodation will include churches (as an “establishment” providing a “service” or “program”).

   4. The Act changes requirements for positions with Bona Fide Occupational Qualifications.

Despite Federal and state laws which prohibited discrimination in employment on the basis of sex, the law continued to recognize some exceptions where the sex of an employee might be a “Bona Fide Occupational Qualification” (“BFOQ”).^[2] For example, dressing room attendants, personal care givers, or clothing models might be required of one sex or the other. Interestingly, the one place where the Act does not change the word “sex” to include sexual orientation and gender identity, is the arena of Bona Fide Occupational Qualifications.

As a result, employers who currently may legally seek a male or female under the BFOQ exception in Title VII will have no exception allowing them to consider an employee’s sexual orientation or gender identity. Furthermore, the Act specifies that “in a situation in which sex is a bona fide occupational qualification, individuals are recognized as qualified in accordance with their gender identity.” Sec 7(b)(3). In other words, under the Act, an employer may require a man or a woman for a position, if sex is a BFOQ, but the employer may not insist on a biological member of that sex. The employer who may lawfully seek a female may not turn away a biological male with a gender identity of a female.

   5. The Act prohibits adoption and foster care providers from selecting traditional married husband-and-wife couples for the children in their care, over LGBTQ couples or individuals.

 The text of the Act indicates hostility towards adoption and foster care providers, including religious providers, for choosing traditional father-mother homes over same-sex couples or LGBTQ individuals. Sec. 2(a)(20). The Act appears to prohibit adoption practices preferring father-mother homes as unlawful discrimination on the basis of sexual orientation under the Act. This law nationalizes a battle that has been fought in several states and municipalities.  Many group homes and child-placement agencies and workers that minister to children, do so because they are motivated by their religious convictions. With no religious exceptions in the Act, these agencies are now left with the conundrum to conduct their ministry in a way that violates their faith or face being shut down altogether.

   6. Prohibition of what has been termed “conversion therapy” and other impacts in the medical field.

The Act prohibits discrimination on the basis of sexual orientation or gender identity and specifies that “conversion therapy” is a form of such discrimination. The Act does not define conversion therapy, so it is unclear what practices would constitute such prohibited discrimination. LGBTQ advocates define conversion therapy as “any attempt to change a person’s sexual orientation, gender identity, or gender expression.”^[3] This could include a broad array of therapies, some elaborate and controversial, and some simple such as religious or psychological counseling addressing unwanted same-sex attraction or gender dysphoria.^[4] Critics have noted that if broadly defined, bans on conversion therapy would encompass religious teaching on marriage and sexuality.

Some states and localities have considered or have already banned conversion therapy, but this would be the first nation-wide federal prohibition of the undefined term “conversion therapy,” when even the state-wide bans are facing a great deal of controversy.

Some medical professionals (such as doctors, nurses, or endocrinologists) are concerned that the Act would also require them to participate in procedures that violate their medical judgment as well as personal conscience, such as puberty blockers for children, cross-sex hormones, or gender-reassignment surgeries for patients with gender dysphoria. Under the definitions in the Act, a medical professional’s refusal to participate in these procedures, or referral of these procedures to others, could qualify as unlawful discrimination and potentially threaten their medical license.

Future Impacts

In addition to these direct impacts, there are several other long-range impacts about which some churches, nonprofits, and others are concerned. For instance, free-speech advocates are concerned that the Act will provoke further battles about pronoun use, that failure to use particular pronouns (for instance, alternative pronouns based on an individual’s gender identity) will be deemed unlawful discrimination under the Act. The Act does not directly address the issue of pronoun use, but the way it prohibits discrimination based on gender identity could be interpreted to include pronoun use in education, employment, public accommodations, or other areas covered by the Act. If passed, this issue is sure to be debated and litigated.

Educators are concerned that the Act may prevent universities (especially public universities or any universities otherwise receiving public funds) from providing safe bedrooms, bathrooms, showers, or other private facilities for women.

Many business groups believe that the Act would force business owners to violate customer’s privacy rights, because it prevents them from maintaining sex-specific facilities. If businesses try to honor such privacy rights, H.R. 5 could create significant, harmful legal and financial liability for employers, which greatly increases the cost of doing business. While the Act obviously threatens religious liberty, business owners reasonably believe that it would also irreparably harm economic liberty, particularly for small and medium-sized businesses. For example, in the Chief Executive’s 2018 Report on Best States for Businesses, data shows that the top 10 states for business do not have any laws like H.R. 5, while almost all of the bottom 10 states for business do.[5]

Many commentators also suspect that this will be used against churches by requiring pastors to perform same-sex marriages against their sincerely held religious convictions, and by removing requirements that pastors or elders be non-gender specific.  Obviously, such a result would undermine sincerely held religious beliefs about marriage and sexuality.

Conclusion

Many businesses, nonprofits, churches, and individuals have expressed concerns and raised questions about what this Act will mean for them. While the bill has not yet passed, this juncture presents a good opportunity for organizations to ensure that their governing documents, hiring practices, and resulting paper trails are consistent with their religious beliefs. Such consistency is going to be crucial for organizations that are challenged, whether under this Act or under similar state legislation that now exists in about half of the states (some with and some without religious exceptions). If this Act is passed, it will undoubtedly face serious Constitutional challenges. Many commentators believe the challenge will ultimately be successful, depending on the circumstances of how the Act is initially enforced, since “bad facts make bad law.” The best way to provide good facts for your organization is to strengthen your governing and employment documents. Strong governing documents will discourage lawsuits against you, since there are better targets; and, if they come after you, will give the organization the best chance to be successful against such legal challenges.

Our firm has helped a number of organizations protect their religious liberty in a variety of circumstances, whether that action is preventative, like creating a strong defense to ward off claims, or responsive, like a lawsuit. Please contact our office if you would like to set up a consultation to have our firm discuss how your organization can specifically protect itself legally in light of these changes.

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Disclaimer: This memorandum is provided for general information purposes only and is not a substitute for legal advice particular to your situation. No recipients of this memo should act or refrain from acting solely on the basis of this memorandum without seeking professional legal counsel. Simms Showers LLP expressly disclaims all liability relating to actions taken or not taken based solely on the content of this memorandum. Please contact Robert Showers at hrs@simmsshowerslaw.com or Will Thetford at wrt@simmsshowerslaw.com for legal advice that will meet your specific needs.

[1] See, e.g., Equality Act Lacks Religious Freedom, Nat’l Ass’n of Evangelicals (Feb. 25, 2021), https://www.nae.net/equality-act-religious-freedom-protections/; The Church of Jesus Christ’s Statement on the Equality Act, The Church of Jesus Christ of Latter-Day Saints (Feb. 27, 2021), https://newsroom.churchofjesuschrist.org/article/equality-act-statement-february-2021; Melissa Reid, Adventist Church Continues to Advocate for Religious Protections in LGBT Civil Rights Legislation, Adventist Rev. (Feb. 26, 2021), https://www.adventistreview.org/church-news/story16044-adventist-church-continues-to-advocate-for-religious-protections-in-lgbt-civil-rights-legislation; Natasha Chart & Rabbi Yaakov Menken, The Equality Act Attacks Both Freedom and Truth, Coal. for Jewish Values (Feb. 24, 2021), https://coalitionforjewishvalues.org/2021/02/equality-act-attacks-freedom/; Letter from John Ashmen, President, Citygate Network, to Jerrold Nadler, Chairman, Committee on the Judiciary & Doug Collins, Ranking Member, Committee on the Judiciary (Apr. 9, 2019), https://allforfreedom.com/wp-content/uploads/2019/04/2019.04.09-Citygate-Network-Ltr-to-House-Judiciary-Committee-Opposing-H.R.-5.pdf; Tom Gjelten, Some Faith Leaders Call Equality Act Devastating; For Others, It’s God’s Will, NPR (Mar. 10, 2021), https://www.npr.org/2021/03/10/974672313/some-faith-leaders-call-equality-act-devastating-for-others-its-gods-will.
[2] Religion and national origin may also be a bona fide occupational qualification in some cases and thus excepted from general nondiscrimination laws.
[3] Conversion Therapy, GLAAD, https://www.glaad.org/conversiontherapy?response_type=embed. (last visited Apr. 16, 2021).
[4] Id.
[5] Letter from Mike Sharrow, President & CEO, C12 Group, to Jerrold Nadler, Chairman, Committee on the Judiciary & Doug Collins, Ranking Member, Committee on the Judiciary (Apr. 2, 2019), https://www.congress.gov/116/meeting/house/109200/documents/HHRG-116-JU00-20190402-SD047.pdf.