by Thomas Ascik
The Civil Rights Act of 1964 prohibiting racial and sexual discrimination was introduced by a single, short paragraph establishing its purpose. But in 23 paragraphs of “Findings,” and one paragraph of “Purpose”—together totaling more than 2,500 words—the Equality Act, already passed by the House, presents a long and detailed agenda for enforcement and regulation.
The Findings and Purpose would have the force of law. Such legislative provisions are routinely referred to in the interpretation of statutes, especially those based on new laws. For example, In Sutton v. United Air Lines (1999), the Supreme Court, in interpreting the Americans With Disabilities Act, ruled that a Congressional “finding” of the number of Americans with disabilities was a “critical” factor in its decision.
The Bill of Rights and all federal civil rights laws are written in the negative. They do not guarantee positive individual, social, or political results. The Equality Act would fundamentally change that history and practice. Indeed, the positive and objective results that it specifically intends to bring about would put the old versions of federal civil rights laws in the shade. The goal is, in its own words, “an explicit and comprehensive national solution.” That solution would affect all Americans daily and personally, especially in the areas of health, employment, and education.
The word “sex” occurs in several places in federal law, including in the Civil Rights Act of 1964, but it has never been legislatively defined. Until recent years it never occurred to anyone that it needed to be defined. In amending Title VII to include “sexual orientation” in the meaning of “sex,” the Gorsuch/Roberts (et al) majority opinion in Bostock v. Clayton County last year was the first ever federal definition of “sex.” The Equality Act goes beyond that expansive decision and would insert several new concepts into the federal code. The Act would amend federal law in 39 different places with the phrase: “sex (including sexual orientation and gender identity).” Sex would now mean “sex stereotype . . . pregnancy, childbirth, or a related medical condition . . . sexual orientation or gender identity . . . sex characteristics, including intersex traits.” The text of the Act defines “sexual orientation” as “homosexuality, heterosexuality, or bisexuality.” The Act states that “‘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.” The text does not define “intersex” or “bisexual.”
The Findings and Purpose go further. In 25 separate places in the Findings, those discriminated against are referred to as “LGBTQ,” that is, “lesbian, gay, bisexual, transgender, and queer.” Queer is not defined in either the Findings or the proposed text of the Act itself. There are two Findings concerning “nonbinary” people, but that term is not defined. Although not included in the actual text of the Act, “transgender” is mentioned seven times in the Findings but is never defined.
The basic coverage of the Civil Rights Act of 1964 concerning “public accommodations” is currently confined by statute to hotels, restaurants, and theaters. But the ill-defined sexual concepts of the Equality Act would apply to 23 newly-named objects, such as a “salon . . . funeral parlor . . . service or care center . . . food service . . . [and] health care.”
Americans interact and spend most hours of the day at their job. How can anyone, especially an employer, know how to abide by these new concepts, never before put down in any federal statute? And how widely is it known among the American people at large what “queer . . . intersex . . . bisexual” and even “transgender” mean specifically and personally? For instance, there appear to be various kinds and stages of transgender transitions. And the word “queer” used to be regarded as an epithet. Now it is slated to be a federally protected category. The Equality Act would essentially revoke a fundamental principle of law in a democracy, that is, “[e]very citizen is presumed to know the law,” as the Supreme Court re-affirmed last year in Georgia v. Public Resource.
Activist political appointees would be tasked with defining, redefining, and policing some of the most elemental aspects of social life.
In its Findings and Purpose, the Equality Act elaborates its overall mission. The stated Purpose of the Act is not only to “expand” but also to “create” remedies “on the basis of all covered characteristics,” which the Findings go on at length to compose and list. People are the victims of discrimination because of “others’ perceptions or beliefs regarding their sexual orientation.” Discrimination may have “more than one basis” or “a combination or the intersection of multiple protected characteristics.” Discrimination includes “harassment” and may be “unfair” as well as “unequal.”
In what is a formal legislative compliment to the mega-corporations that have promoted this agenda, one of the Findings praises them for taking “proactive steps” in their “fostering [of] positive and respectful cultures.” The clear implication, of course, is that every person, business, and institution henceforth must not only refrain from discrimination, but must also proactively create the appropriate “culture.” This is necessary to rectify “negative social and economic outcomes.” The goal is “national progress” and the correction of “persistent, widespread, and pervasive discrimination by both private and government actors.”
“Perceptions” about LGBTQ people would be policed: “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,” on “sex-based stereotypes,” and on “imputed” identity—as well as “mannerisms” and “culture.”
It would be up to several executive departments of the Biden administration to issue regulations concerning the Act’s new definitions of sex and also to establish definitions of the new concepts left undefined by the Act. Activist political appointees would be tasked with defining, redefining, and policing some of the most elemental aspects of social life.
Title VII not only prohibits intentional discrimination but also discrimination based on “disparate impact,” an employment practice that has a disproportionate effect on a certain group. When the Supreme Court in Wards Cove v. Atonio (1989) largely eliminated the use of “disparate impact” (a concept invented by an earlier Court in Griggs v. Duke Power ), Congress responded with the Civil Rights Act of 1991, writing disparate impact into employment-discrimination law. The statute now provides that in order to defend himself against a suit based on disparate impact, an employer must show that the particular employment practice is “job related and . . . and consistent with business necessity.”
The Equality Act would expand this doctrine into areas never before contemplated, making even beliefs, perceptions, and imputations about LGBTQ people actionable. This expansion into the realm of thought, along with the Act’s newly defined and several still-undefined categories, reflects the belief espoused in President Biden’s first-day Executive Order on gender identity/sex orientation that ”overlapping forms of discrimination,” are everywhere and must be rooted out with just this sort of “comprehensive, national solution.”