The US Equality Act Must Be Stopped

The Equality Act would cement the dominance of gender identity over sex; it cannot be allowed to pass in its current form.

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About the Author

A sociologist and criminologist, Callie Burt is a professor in the Andrew Young School of Policy Studies at Georgia State University. More information about the author and links to her scholarship and other writings can be found at www.callieburt.org.

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During “LGBTQ Pride Month,” Democrats reintroduced the U.S. Equality Act (H.R.15, S.5) into both the House and Senate. This is a prominent piece of Democratic legislation designed to provide federal nondiscrimination protections to LGBTQ+ individuals. With co-sponsorship from nearly all Democrats across both chambers but no support from Republicans, the bill proposes amendments to the Civil Rights Act of 1964 and other civil rights laws. It seeks to prevent discrimination based on sexual orientation and gender identity—paralleling protections for age, race/ethnicity, and sex—in various areas such as employment, public accommodation, housing, education, federally funded programs, jury service, and credit. The bill would also expand public accommodation protections to include “any establishment that provides a good, service, or program” and transportation services.

Although public polling on the Equality Act is scarce and now slightly dated (from 2021), existing data suggests that the majority (typically more than 60 percent) of Americans support the Equality Act or similar federal nondiscrimination protections for LGBTQ individuals.

As a lifelong Democrat-affiliated voter in a same-sex marriage, my political beliefs are progressive on virtually all issues. I also support general federal nondiscrimination protections for LGBTQ+ individuals on the basis of sexual orientation and transgender status. However, I strongly oppose the US Equality Act in its current form, and you should too if you value women’s rights. Allow me to explain.

The Equality Act (hereafter EA) is designed to prohibit discrimination against LGBT+ people and provide redress when such discrimination occurs. While these aims are laudable, the bill imposes an intolerable cost: the elimination of sex-based protections for females and an erosion of the protected nature of female provisions. The EA is thus a well-intended but fundamentally flawed piece of legislation, which would have foreseeable and unacceptable costs for females due to two major issues: terminological imprecision and a problematic prioritization of unobservable gender identity over sex for access to “sex-based provisions.”

The EA’s most frustrating flaw lies in its imprecise terminology and the conflation of sexual orientation and gender identity with sex. Rather than offering protections to LGB and transgender people by creating two new protected classes—sexual orientation and gender identity, respectively—the EA attempts to protect LGBT individuals by redefining “sex” in civil rights law to “include sexual orientation and gender identity.” Moreover, the EA would change every instance of “sex” in the Civil Rights Amendment to “sex (including sexual orientation and gender identity).” This approach is not only unnecessary but fundamentally flawed. Sex (male, female) is not synonymous with sexual orientation (defined in the bill as “homosexuality, heterosexuality, or bisexuality”), and sexual orientation, by most understandings, requires a definition of sex. Likewise, gender identity is also not the same as sex, a distinction evident in the fact that a biological female cannot be a transwoman.

Compounding the issue, the bill defines gender identity ambiguously and circularly with reference to “gender,” yet fails to offer any definition of that term. For example, “gender identity” is defined in the bill as “the gender-related identity, appearance, mannerisms, or other gender-related characteristics of an individual, regardless of the individual’s designated sex at birth.” What constitutes a “gender-related identity,” you may ask? The bill doesn’t say.

This vagueness and circularity in definition might be acceptable if gender identity was protected alongside sex as something distinct, where females could retain sex-based provisions (in locker rooms, prisons, rape crises and homeless shelters, etc.). Alas, that is not the case. The EA not only equates gender identity with sex but prioritizes it over sex in accessing sex-based provisions. Ignoring Republican objections to maintaining sex-based provisions, Democrats added a clause to the bill that explicitly gives preference to gender identity over sex: “(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.” The bill’s public accommodations expansion includes “places of or establishments that provide entertainment, health care facilities, and shelters,” and “forms of discrimination include the exclusion and denial of entry.” Thus, under this bill, sex-separated provisions would now have an explicit carve-out—or exception—based on a vaguely defined and unobservable gender identity.

Furthermore, the EA cements the dominance of gender identity over sex, specifying that: “if, in a situation in which sex is a bona fide occupational qualification, individuals are recognized as qualified in accordance with their gender identity.” As a result, a female intimates (bras, lingerie, etc.) store that hires only female employees, for instance, could no longer exclude any male who identifies as woman, womanly, or non-binary from employment. The implications are far-reaching and in some cases almost comically absurd: a “gentleman’s club” (aka, a strip club) could not refuse to employ a bepenised male identifying as a woman. Similarly, Club Z, a private “bathhouse” for gay men in Seattle that has an explicit policy of “NO feminine attire,” could be sued for not allowing a female who identifies as a masculine gay man, even if she dresses in a traditionally feminine manner.

Extreme cases aside, what does this mean and why should you care? The prioritization of self-declared and unobservable gender identity over sex means that any male at any time could self-identify into female spaces where women are vulnerable and/or undressed, including locker rooms, shelters, prisons, and changing rooms, based on an in-the-moment self-declaration of a female gender identity. Denying males access based on such a declaration would constitute federally prohibited discrimination based on gender identity qua sex. Significantly, even if you believe that transwomen are women and should have access to female provisions, this bill would allow ANY male to simply self-ID as “woman” and gain immediate access to women’s spaces, and vice versa for females and male spaces. (To be clear, here, as elsewhere, I focus on the costs of allowing males to self-ID into female spaces because males, as a group, pose a threat to females that females, as a group, do not pose to males. However, I also believe that males should be able to have spaces free of females, given longstanding norms and socialization around sex-based privacy.)

Believing that predatory males would not exploit the gender identity provision would amount to willful ignorance; we know they would, and indeed, they already have. Some might argue that the incidence of such predation would be too rare to justify excluding exclude trans people, especially transwomen, from protection. This argument is not compelling for several reasons. Most importantly, because gender identity is unknowable and transwomen can also be predatory males, women cannot know which males are safe and sincere transwomen and which are predatory males. Thus, even if the rate of actual male predation via gender self-ID is low, the unknown threat posed by males in women’s spaces will surely undermine the felt safety and psychological well-being among females. Males pose a far greater physical and sexual threat to women, and everyone knows this. Furthermore, despite claims about the extremely high risk of violence against transwomen in male spaces, evidence does not suggest that transwomen face a high risk of violence in male spaces or that violence, in general or against transwomen, would be reduced by gender self-identification policies. Indeed, research shows that when access to protected spaces is based solely on self-identification, predatory individuals may exploit this and potentially compromise the safety of everyone present.

The potential ramifications extend to other areas like sports, which could no longer be separated by sex under the Equality Act. Even efforts to reduce (but certainly not eliminate) male sporting advantages, such as artificially lowering testosterone levels, might not be allowed. The list goes on, but the crux of the matter is that any area currently divided by sex would instead be separated by instantaneous gender identity self-declaration. And this from a society that rejects self-ID in virtually every other domain. We require obviously disabled people to procure and display a handicapped license; a 45-year-old must present a driver’s license to purchase alcohol; voting in elections requires specific acceptable forms of ID to prove we are who we say we are. Yet, under the EA, a male rapist could self-ID as a woman to gain access to a women’s rape crisis shelter as a woman, and denying him entry would constitute federally prohibited discrimination.

This conflation of sex and gender and prioritization of unobservable gender identity over sex is both undesirable and unnecessary. We can, and should, protect LGB people from discrimination based on their sexual orientation, and transgender people from discrimination in housing, employment, and the like, without undermining sex-based provisions or jeopardizing the protected nature of female spaces. This bill simply does not meet that standard, and we should oppose it.

Fortunately, this bill is unlikely to garner the 60-vote majority required for passage in the Senate, even if it does make it through the House. While I will breathe a sigh of relief if that occurs, it’s important to recognize that until we devise better legislation, unjust discrimination against LGBT people will persist in some states where neither sex, sexual orientation, nor gender identity should be factors.

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