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But the Equality Act?<\/p>\n
That\u2019s entirely different.\u00a0 Nothing about this bill allows for that more-moderate interpretation.<\/p>\n
Let\u2019s look at the text<\/a>:<\/p>\n In the bill\u2019s definitions:<\/p>\n The term \u2018gender identity\u2019 means the gender-related identity, appearance, mannerisms, or other gender-related characteristics of an individual, regardless of the individual\u2019s designated sex at birth.<\/p><\/blockquote>\n And<\/p>\n The term \u2018sex\u2019 includes\u2014<\/p>\n \u201c(A) a sex stereotype;<\/p>\n \u201c(B) pregnancy, childbirth, or a related medical condition;<\/p>\n \u201c(C) sexual orientation or gender identity; and<\/p>\n \u201c(D) sex characteristics, including intersex traits.<\/p><\/blockquote>\n The key action of the bill is to add the parenthetical \u201cincluding sexual orientation and gender identity\u201d in every instance in which \u201csex\u201d appears as a reason for which discrimination is prohibited.\u00a0 What does it mean to discriminate on the basis of sexual orientation or gender identity, vs. merely making reasonable differentiations?\u00a0 One can presume that the \u201cfindings\u201d are meant to provide the key to interpretations.\u00a0 Among these are references to discrimination against nonbinary individuals by homeless shelters and rejection of same-sex couples by some foster care\/adoption agencies.\u00a0 Other than this, one is left to presume that the demands that activists make \u2014 for participation by trans-girls in girls\u2019 sports without limits \u2014 are intended to be acceded to in this law.<\/p>\n Other provisions include<\/p>\n in a situation in which sex is a bona fide occupational qualification, individuals are recognized as qualified in accordance with their gender identity.<\/p>\n<\/blockquote>\n (with respect to sex) pregnancy, childbirth, or a related medical condition shall not receive less favorable treatment than other physical conditions<\/p>\n<\/blockquote>\n (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\u2019s gender identity.\u201d<\/p>\n and<\/p><\/blockquote>\n 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.\u201d<\/p>\n<\/blockquote>\n What\u2019s the consequence of this legislation?<\/p>\n In the first place<\/strong>, girls and women will no longer be able to maintain sex-segregated athletic competitions or, really, any facilities of any kind.\u00a0 As it is, in high schools, boys-who-identify-as-girls are allowed to compete on girls\u2019 teams, and girls are told to suck it up and that it is no more \u201cunfair\u201d for them to compete with a \u201cgirl\u201d with testosterone than it is to compete with a girl who, by the lottery of genetics, is taller than average.\u00a0 With respect to adults, there are already heated debates about whether the requirements for specified lengths of time taking cross-sex hormones can truly erase the advantages of male puberty.\u00a0 But would an athletic league even be able to enforce these minimal requirements under this law?<\/p>\n In the second place,<\/strong> the law would place new requirements on medical providers.\u00a0 A Catholic hospital had refused to perform a hysterectomy for someone for whom it was part of a transition surgery rather than medically necessary, and experts believe that the new anti-discrimination requirements would mandate this.<\/p>\n Likewise, the provision \u201cpregnancy, childbirth, or a related medical condition shall not receive less favorable treatment than other physical conditions,\u201d opens itself up for all manner of interpretations, most crucially in terms of the vagueness of the phrase \u201crelated medical condition.\u201d\u00a0 \u00a0Given how comprehensively Congress likes to define provisions when it matters, this suggests that it wants to create a situation in which the true significance of the bill is not recognized until the Biden administration creates the regulations which interpret this \u2014 and that can include everything up to mandating that insurers cover abortion and doctors perform abortion.<\/p>\n And in the third place<\/strong>, the stipulation that the Religious Freedom Restoration Act is effectively repealed with respect to this bill raises yet more worries.\u00a0 That law, after all, came about because of Supreme Court rulings that said that generally-applicable laws did not necessarily violate the Constitution\u2019s guarantee of religious freedom even if it impacted a religious group; if American Indians\u2019 use of peyote was prohibited by drug laws, too bad, so sad, but the law wasn\u2019t unconstitutional.\u00a0 The RFRA was meant to remedy this by providing additional protections.<\/p>\n This provision is similar to the Do No Harm Act<\/a> of last year, which Kamala Harris was a vocal supporter and chief sponsor of.\u00a0 This bill specified that the RFRA would not apply in any case where it would contravene the Civil Rights Act (as amended to include sexual orientation or gender identity), or where it would limit \u201caccess to, information about, referrals for, provision of, or coverage for, any health care item or service\u201d (which the Biden administration would define to include contraception and abortion), or \u201cto the extent that application would result in denying a person the full and equal enjoyment of a good, service, benefit, facility, privilege, advantage, or accommodation, provided by the government.\u201d<\/p>\n How far would the government go in its interpretation?\u00a0 Would it require that Catholic churches ordain women?\u00a0 That they perform marriages for same-sex couples?\u00a0 If this seems too much a stretch, it is far more likely that Catholic hospitals and healthcare providers would be compelled to perform abortions and surgeries related to transitions or be hit with ruinous fines or compelled to shut down.<\/p>\n (See \u201cWhat to Know About the Equality Act<\/a>\u201d at First Things, \u201cBiden\u2019s Equality Act is a danger to women\u2019s and conscience rights<\/a>\u201d at the New York Post<\/em>, and \u201cWhy The \u2018Equality Act\u2019 Democrats Want To Pass This Week Should Really Be Called The \u2018Destroy Our Daughters Act\u2019<\/a>\u201d at The Federalist for more.)<\/p>\n<\/body><\/html>\n","protected":false},"excerpt":{"rendered":" Remember back last summer when the Supreme Court determined that, by parsing the Civil Rights Act as literally as possible, it protected homosexual and transgender workers?\u00a0 At the time I said, \u201chey, the sky is not falling, Gorsuch actually affirmed a biological definition of \u2018sex,\u2019 and the ruling is fairly narrow.\u201d\u00a0 Indeed, the premise of […]<\/p>\n","protected":false},"author":2209,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[149],"class_list":["post-17878","post","type-post","status-publish","format-standard","hentry","category-uncategorized","tag-transgender"],"yoast_head":"\n\n
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