#hr5

This is a follow-up to my post about the Equality Act. The Equality Act was reintroduced in the House of Representatives this year - now with a fighting chance under a Biden presidency. The bill was reintroduced on February 18, 2021, and voted on and passed a week later, on February 25, 2021. Usually bills get a longer period in the House before they’re voted on. There are a few reasons it might’ve gotten rushed:

The Democrat-controlled House passed the last (virtually identical) version of the bill during the last Congress, so they might not have felt a need to debate it.

Biden promised to pass the Equality Act within 100 days of taking office. 

The more people learn about the effects the gender identity provisions of the Equality Act will have, the less they’ll support it.

Having passed the House, the bill moves to the Senate on March 1, 2021. It was referred to the Senate Judiciary Committee, which held a hearing with surprisingly short notice on March 17, 2021. The full hearing can be viewed here.

The sad thing about the Senate hearing is that leaders of several feminist organizations, including FIST and WHRC USA, fought for a chance to speak at the hearing. All were turned down. Following in the good ol’ tradition of blatant partisanship, the Democrats only called witnesses in support of the Equality Act. The Republicans, of course, are even less fond of feminists than the Democrats. They invited several speakers to testify against the Equality Act on the basis of protecting religious freedom. They did allow gender critical journalist Abigail Shrier to testify, and she did a fantastic job. But she was testifying against the stance of the Democratic Party. The main takeaway I got from this is that both parties are actively undermining women’s rights, and feminists in the United States are truly politically homeless.

But it isn’t over yet! Right now, the bill is still in the Senate Judiciary Committee. Democrats don’t have enough of a lead in Senate to pass the Equality Act without bipartisan support, so it’s less likely to get rushed through here. Until it gets approved by the Judiciary Committee and called for a vote, the Senate Judiciary Committee can amend the Equality Act.

This is what feminist organizations are working on. FIST has written Feminist Amendments to the Equality Act. FIST has formed an alliance with LGB Alliance USA to promote these amendments. WHRC USA has published its own alternative, the Equality for All Act. Both of these proposals maintain or expand the protections for same-sex individuals proposed in the Equality Act; they maintain sex-based rights that the Equality Act would undermine; and they maintain or strengthen protections based on gender nonconformity. Although gender identity is removed, trans people are still protected from discrimination based on gender nonconformity, which is the material basis on which trans people are discriminated against.

This is a major opportunity to shape history for the better. If you would like to help, please look more into FIST and WHRC. We can’t propose the amendments ourselves; we need a Senator to sponsor and propose them for us. As you might guess from my description of the Senate hearing, we’ve been struggling to find a Senator on either side who will cross the aisle far enough to support us. Women are not a priority for either party. But with enough numbers, we can force them to listen to us.

The Equality Act is currently scheduled for a hearing before the Senate Judiciary Committee on tomorrow(!!) Wednesday March 17th at 10:00am ET.

PLEASE CALL YOUR SENATORS AND ASK THEM TO:

Place Callie H. Burt on the witness list for the hearing on March 17th for the Equality Act.  There are serious flaws in the legislation that must be amended so that the rights of women and girls are not abridged.  The current legislation conflates sex with “gender identity” which effectively eliminates sex-based protections for females, and also explicitly requires that transgender-identified males–any male who claims to be a woman–be admitted into women’s facilities including bathrooms, locker rooms, and changing rooms, which infringes on the right of women and girls to privacy, safety, and dignity. Ms. Burt will be representing the Coalition for the Feminist Amendments, which is a coalition of organizations supporting the Feminist Amendments to the Equality Act.  Please respond to [email protected]

You may also wish to write an email in addition, but calling is more effective.

ALSO CONTACT THE WHITE HOUSE by email (the comment line phone number is currently unavailable) to let President Biden and Vice President Kamala Harris know that you oppose the Equality Act unless it is amended to:

a) eliminate the conflation of sex and gender ‘identity’ and

HR5, otherwise known as the Equality Act, is a bill in the United States that would, at a federal level, prohibit discrimination based on “sex, sexual orientation, and gender identity in areas including public accommodations and facilities, education, federal funding, employment, housing, credit, and the jury system.” So, for example, this bill would make it illegal to deny a couple housing for being a gay couple. Which is great! Unfortunately, the implementation of the bill has a lot left to be desired.

On thing you may notice is that this bill includes sex in its added protected categories. The Equality Act correctly identifies:

(4) Women also have faced discrimination in many establishments such as stores and restaurants, and places or establishments that provide other goods or services, such as entertainment or transportation, including sexual harassment, differential pricing for substantially similar products and services, and denial of services because they are pregnant or breastfeeding. 

The Equality Act explains the struggles of LGBTQ people as:

(3) Lesbian, gay, bisexual, transgender, and queer (referred to as “LGBTQ”) people commonly experience discrimination in securing access to public accommodations [...]. Forms of discrimination include the exclusion and denial of entry, unequal or unfair treatment, harassment, and violence.

(As a side note, yes, this bill flat out calls gay people “queer” in this legally-defined acronym.)

From there, the Act refers a few times to “LGBTQ people and women” as the groups they’re aiming to protect. So far, not too bad, and this bill will help more than it hurts. It also does make some great points. For example:

(12) Discrimination based on sexual orientation includes discrimination based on an individual’s actual or perceived romantic, emotional, physical, or sexual attraction to other persons, or lack thereof, on the basis of gender. LGBTQ people, including gender nonbinary people, also commonly experience discrimination because of sex-based stereotypes. Many people are subjected to discrimination because of others’ perceptions or beliefs regarding their sexual orientation. Even if these perceptions are incorrect, the identity imputed by others forms the basis of discrimination.

This correctly identifies the discrimination people experience due to failures to conform to various sex-based stereotypes. Unfortunately, the bill continues with:

(13) Numerous provisions of Federal law expressly prohibit discrimination on the basis of sex, and Federal courts and agencies have correctly interpreted these prohibitions on sex discrimination to include discrimination based on sexual orientation, gender identity, and sex stereotypes. In particular, the Supreme Court of the United States correctly held in Bostock v. Clayton County, 140 S. Ct. 1731 (2020) that the prohibition on employment discrimination because of sex under title VII of the Civil Rights Act of 1964 inherently includes discrimination because of sexual orientation or transgender status.

Last year’s Bostock v. Clayton case was a case in which a trans-identified male sued for discrimination after being fired from his job for following the women’s dress code. The court correctly ruled in favor of the trans-identified male - this person was fired for failing to conform to sex-based stereotypes. Unfortunately, the court did not use this reasoning to support its decision. The court did not find that separate dress codes for women and men is sexist - instead, it said that it’s sexist to force a person to conform to sex-based dress codes rather than gender identity-based dress codes. It’s difficult to express how painful that is. Transphobia under these laws isn’t a crime - it’s just a form of sexism based on gender identity rather than sex. Which means any case that comes down to sexism vs “transphobia” has no real way to legally differentiate the two.

And the Equality Act reinforces this decision. The majority of the act is just rewriting the Civil Rights Act to include “sex (including sexual orientation and gender identity)”. Sexual orientation and gender identity aren’t even their own protected classes - they’re just legally identical to sex.

In places where sex was already a protected class - for example, in employment, the Equality Act waters down these protections:

(c) Other Unlawful Employment Practices.—Section 704(b) of the Civil Rights Act of 1964 (42 U.S.C. 2000e–3(b)) is amended—

(1) by striking “sex,” the first place it appears and inserting “sex (including sexual orientation and gender identity),”; and 

(2) by striking “employment.” and inserting “employment, if, in a situation in which sex is a bona fide occupational qualification, individuals are recognized as qualified in accordance with their gender identity.”.

Now onto the most important part, the definitions. I’ll start with sexual orientation:

(5) SEXUAL ORIENTATION.—The term ‘sexual orientation’ means homosexuality, heterosexuality, or bisexuality.

This is fairly straightforward, assuming everyone agrees for example that “homosexuality” means “same-sex attracted.” Since the bill doesn’t further define it, the sex-based versus “gender”-based distinction is still up for debate, should it ever become legally relevant. Next:

“(4) SEX.—The term ‘sex’ includes—

     “(A) a sex stereotype;

     “(B) pregnancy, childbirth, or a related medical condition;

     “(C) sexual orientation or gender identity; and

     “(D) sex characteristics, including intersex traits.

You’ll notice that none of these are just... biological sex. The closest is “sex characteristics, including intersex traits,” and it’s listed last. You’ll also noticed that “sexual orientation or gender identity” are once again listed under “sex,” which makes most of the rest of the document redundant overkill. But, onto our last relevant definition:

“(2) GENDER IDENTITY.—The term ‘gender identity’ means the gender-related identity, appearance, mannerisms, or other gender-related characteristics of an individual, regardless of the individual’s designated sex at birth. 

That’s right, gender identity is literally defined as “gender-related identity”! This is what people are talking about when we criticize the self-ID aspect of the law. There is literally zero way, in reality or under this law, to determine whether a person truly has the gender identity that they claim. There is literally nothing stopping “cis men” from using this federal law to access women’s spaces except for their good word. And we know how that turns out.

So, what does this cover? This applied to titles II, III, IV, VI, VII, and IX. Most relevant to feminists would be Title 7 and Title 9.  The Rules of the bill say that, in respect to these titles:

“(1) (with respect to sex) pregnancy, childbirth, or a related medical condition shall not receive less favorable treatment than other physical conditions; and

“(2) (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.”

This is the part where the bill finally distinguishes between sex and gender identity. The conclusion? Women only need sex-based protections for sex-based medical conditions. Sex-segregated spaces are sexist against people with a gender identity. It would honestly be so much less painful if the bill didn’t pretend like it was actually improving women’s situation. You know, like the bill literally addressed at the beginning, about how women are discriminated against in the public sphere. Now we’re somehow being sexist for wanting sex-based rights.

David Badash at NCRM: 

The Republican-majority U.S. House of Representatives Friday morning passed HR 5, the “Parents’ Bill of Rights,” legislation similar to Florida Governor Ron DeSantis’ laws that have led to book bans and targeting of LGBTQ children.

The bill passed 213-208, with 14 Members not voting. All yes votes were from Republicans only. Five Republicans joined Democrats to vote no.

Democratic U.S. Rep. Ted Lieu of California warned the legislation “pits parents against parents.”

“The extreme MAGA H.R. 5 bill will let other parents dictate what books your child gets to read. It’ll make it easier for other parents to know if your child has an eating disorder, or is experiencing a mental health crisis,” Lieu warned.

[...]

CNN reports the bill would also “require elementary and middle schools that receive federal funding to obtain parental consent before ‘changing a minor child’s gender markers, pronouns, or preferred name on any school form; or allowing a child to change the child’s sex-based accommodations, including locker rooms or bathrooms.'”

Senate Democratic Majority Leader Chuck Schumer called the legislation “Orwellian to the core,” and promised it “will not see the light of day.”

The House passed with a 213-208 vote on HR5, an anti-LGBTQ+ bill disguised as a  "parental rights" bill, with 5 Republicans crossing over to vote no (Lawler, Gaetz, Rosendale, Biggs, and Buck; the latter four are due to the bill not being harsh enough).

Thankfully, the Senate won't even consider this dangerously anti-LGBTQ+ bill.

See Also:

Brennan Suen at MMFA: 

Two historic moments of progress for LGBTQ people occurred on Thursday, February 25: The House of Representatives passed broad LGBTQ nondiscrimination protections in the Equality Act, and Dr. Rachel Levine -- the first transgender person nominated to a Senate-confirmed position -- had her Senate confirmation hearing to be assistant secretary of health.

In the days surrounding those events, however, Media Matters found that the vast majority of the conversation on political Facebook pages around those two topics came from right-leaning pages. Posts about the Equality Act fearmongered that it would destroy women's sports, harm their safety and privacy, and declare “war on reality,” among other harmful rhetoric. Posts attacking Levine lied that she supports “genital mutilation” for kids and claimed that supporting trans youth is "obscene."

Key findings of our analysis from February 22 to March 1 include:

Posts about the Equality Act from right-leaning pages earned more than 3 million Facebook interactions, or about 65% of total interactions across political pages.

Posts about the Equality Act from ideologically nonaligned and left-leaning political pages earned about 1.6 million interactions, combined.

Right-leaning pages posted more frequently about the Equality Act than other pages, making 669 posts compared to 274 from nonaligned pages and 319 from left-leaning pages.

Posts about Levine from right-leaning pages earned more than 2.1 million Facebook interactions, or about 88% of total interactions across political pages.

Posts about Levine from ideologically nonaligned and left-leaning political pages earned about 298,000 interactions, combined.

Right-leaning pages posted more frequently about Levine than other pages, making 294 posts compared to 46 from nonaligned pages and 48 from left-leaning pages.

Nine pages run by right-wing outlet Daily Wire earned a significant share of total interactions on posts about Levine and the Equality Act. The Daily Wire’s network of pages earned about 569,000 interactions on posts about the Equality Act, or about 12% of total interactions across political pages, and about 814,000 interactions on posts about Levine -- roughly one-third of total interactions across political pages.

[...]

Right-leaning Facebook pages drove the conversation on Facebook about the Equality Act as well as Levine and her confirmation, even though both stories involve major milestones for the LGBTQ community. These pages made a deluge of anti-trans posts that essentially drowned out good coverage of these issues, attempting to sway public opinion in line with a broader strategy by Republicans to put anti-trans attacks front and center.

On February 28, during a speech at the Conservative Political Action Conference (CPAC) that largely repeated his usual list of conservative grievances, former President Donald Trump “said something new” by attacking trans athletes. The Washington Post noted that he “rarely talked about transgender rights as a candidate” and “ignored the issue in 2020,” so the CPAC speech signaled a rhetorical shift toward demonizing trans people after right-wing activists have pushed for Trump to more publicly oppose them. Additionally, state legislatures across the country are considering legislation targeted at trans athletes and health care for young trans people.

Right-wing media online, as well as Fox News, have set the stage for these attacks and perpetuated vitriol and misinformation about trans people -- and they have been aided by Facebook, which has long shown a preference for right-wing content on its platform, including posts about trans issues. A July 2020 study by Media Matters found that right-leaning sources earned a total of over 43.33 million interactions -- or more than 65% of total interactions -- on trans-related content that earned more than 100,000 interactions during the time period studied. Despite this, conservatives have repeatedly claimed that Facebook and other social media outlets are biased against them.

Facebook has superficially celebrated LGBTQ Pride and claims it is “dedicated to creating an environment where people can be their authentic selves and share their own diverse backgrounds, experiences, perspectives and ideas.” Yet it is an unsafe platform for LGBTQ people and one of the biggest perpetuators of anti-trans misinformation and hatred anywhere -- making Facebook complicit in creating an environment in which trans people’s lives and well-being are put in danger.