Floundering alongside other liberal priorities such as voting rights, gun control and police reform, legislation that would write protections for LGBTQ Americans into the nation's foundational civil rights law have stalled due to sharpening Republican rhetoric, one key Democrat's insistence on bipartisanship, and the Senate's 60-vote supermajority rule.
While Senate Majority Leader Charles Schumer, D-N.Y., hinted at a potential action this month - the annual LGBTQ Pride Month - Senate aides and advocates say there are no immediate plans to vote on the Equality Act, which would add sexual orientation and gender identity to the protected classes of the 1964 Civil Rights Act alongside race, color, religion and national origin.
Sen. Tammy Baldwin, D-Wis., one of two openly gay senators, said that she has quietly been lobbying Republican colleagues on the issue and that there has been only "incremental progress," though efforts are continuing.
"So long as negotiations are productive and we're making progress, I think we should hold off" on a vote, she said. "There may be a time where there's an impasse. I'm still trying to find 10 Republicans."
The House passed the legislation in February, 224 to 206, with only three Republicans joining all 221 Democrats in support. The Senate companion bill is sponsored by 49 Democrats and no Republicans. Sen. Joe Manchin III, D-W.Va., is the Democratic holdout, and the lone Republican who had sponsored a previous version of the bill, Susan Collins (Maine), is not yet doing so in this Congress.
The partisanship around the issue on Capitol Hill stands in contrast to the wide-ranging support for LGBTQ rights among the public at large, in corporate America, and even in the federal judiciary, which has delivered a string of rulings expanding those rights - including a landmark Supreme Court opinion last year written by conservative Justice Neil M. Gorsuch that effectively banned employment discrimination on the basis of sexual identity.
But lawmakers, aides and advocates say that significant obstacles to progress on the Equality Act remain, including polarized views on how to protect the rights of religious institutions that condemn homosexuality and Republicans' increasing reliance on transgender rights as a wedge issue.
Schumer last month said the bill was "one of the things we're considering" for a vote during Pride Month but added, "it's a very busy June." And while individual conversations are taking place, according to Baldwin and Sen. Jeff Merkley, D-Ore., the lead Senate author, there appears to be no organized negotiation underway as there has been on other hot-button issues.
"We're talking about immigration, infrastructure, policing," Sen. John Cornyn, R-Texas, a key GOP figure on civil rights matters, said this month. "But not much on the Equality Act."
The backdrop is a new Republican push to target LGBTQ rights. Advocates count at least 17 new state laws passed this year targeting the community, most of them specifically aimed at transgender Americans. When the House debated the Equality Act earlier this year, numerous Republicans came to the floor to warn of dire consequences if the bill were enacted.
Rep. Andrew S. Clyde, R-Ga., said passing the bill would be "opening the door for predatory men to prey on [women] in the most vulnerable of places - in shelters, changing rooms, and showers." Many others raised fears it would put cisgender women athletes at a competitive disadvantage against transgender women, and some said it would open the door to government-funded abortions.
The sharp-edged rhetoric has continued, even as the spotlight has turned elsewhere on Capitol Hill. At the Faith & Freedom Coalition's Road to Majority conference Friday in Florida, Sen. Marsha Blackburn, R-Tenn., launched an extended attack on the bill, claiming it would "mean that boys who self-identify as female are competing against your daughters and granddaughters in sports" and that "domestic abuse shelters would have to take in men who self-identify as females."
"They say, 'Let's treat everybody equal.' We have equality. We have provisions in our Constitution," she said.
The corps of advocates who see the Equality Act as the capstone of a 50-year struggle for LGBTQ civil rights say they remain optimistic that progress can be made on a lawmaker-by-lawmaker basis. They believe that at least 10 Republicans will ultimately be open to passing the law, vaulting a potential filibuster, and that Manchin will support the bill once a critical mass of Republicans get on board.
Alphonso David, president of the Human Rights Campaign, the nation's most prominent LGBTQ rights organization, said the main thrust of the advocacy has been combating "misinformation" about the bill - including the notion that it would impinge on religious freedom.
"We've had the First Amendment on the books for decades. We've had a clear separation between church and state for decades. The Equality Act does not change the fundamental principles that support religious freedom," he said. "We heard some of the same arguments, if you will, in the 1960s when the Civil Rights Act was amended - that this would really radically affect how religious institutions function. That didn't happen."
The push has been complicated by the federal courts, which have taken up major cases dealing with LGBTQ rights in recent years. Some Republicans have cited last year's surprise decision banning employment discrimination in declaring that they no longer see a need for broader civil rights legislation. And on Thursday, a unanimous Supreme Court rejected a Philadelphia agency's decision to sideline organizations that refused to place foster children with same-sex couples on religious grounds - a narrow decision that did not establish a broad new religious freedom doctrine.
But the advocates argue that the courts have left major gaps in LGBTQ rights - such as excluding discrimination in housing, public accommodations and jury service - while also pointing out that existing statutes and court decisions do plenty to preserve religious freedom.
"I like the Equality Act how it's written - I think it is appropriate and fair," said Mara Keisling, founder and executive director of the National Center for Transgender Equality. But, she said, "no bill is perfect, and if there's some particular thing that anybody wants to talk about, I say we talk about it."
Some GOP congressional aides, however, said that the Equality Act's supporters have not been open enough to policy concessions. Tyler Deaton, a political consultant who has helped build GOP support for LGBTQ rights, said the legislation will have to change to win a sufficient number of Republican votes, noting that numerous states who have passed similar civil rights laws have written in those protections.
"Especially in the wake of the Supreme Court's most recent ruling, it's critical that Democrats work with Republicans in the Senate who agree that LGBTQ Americans need federal protections, and people of faith deserve a Civil Rights Act that respects them as well," Deaton said.
In explaining his opposition to the bill in 2019, Manchin expressed general support for LGBTQ rights but cited the discomfort of school officials in his home state with the bill's gender implications, saying he was "not convinced that the Equality Act as written provides sufficient guidance to the local officials who will be responsible for implementing it." He vowed to "build broad bipartisan support and find a viable path forward for these critical protections."
The bill's proponents have been reticent to discuss any changes that would address the GOP objections about transgender sports and other issues they have used as political cudgels. Instead, they have focused on convincing lawmakers that their fears are simply misplaced.
Women's sports and other anti-trans issues are "not a primary conversation that anybody in the Senate seems to really want to have," Keisling said. "Everybody who has looked at that issue understands it is entirely a red herring, red meat, disgraceful diversion."
Democrats and advocates have been especially perplexed by Collins's decision not to co-sponsor the reintroduced bill this year after serving as its lone GOP co-sponsor in the previous Congress and joining Democrats on numerous other LGBTQ rights issues, such as opposing a constitutional amendment banning same-sex marriage and repealing the military's "don't ask, don't tell" policy.
Some have privately speculated that the HRC's decision to endorse Collins's opponent, Democrat Sara Gideon, in her 2020 reelection campaign may have soured Collins on the legislation.
Annie Clark, a spokeswoman for Collins, said the endorsement decision has nothing to do with her position and that she "supports protecting the civil rights of all Americans, regardless of their sexual orientation or gender identity."
"The Equality Act was a starting point for negotiations, and in its current form, it cannot pass," Clark said. "That's why there are ongoing discussions among senators and stakeholders about a path forward."
Collins is seeking amendments that would protect the right of domestic violence shelters to serve men and women separately based on their birth gender as well as protections for faith-based service providers, such as Catholic Charities.
"I would hope that [the endorsement] is not a factor," David said. "Look, I think if an elected official supports LGBTQ rights, what one organization may or may not do should not affect that senator's fundamental principles."
Published : June 21, 2021
By : The Washington Post · Mike DeBonis