A congressional hearing Tuesday on the Equality Act, legislation seeking to prohibit anti-LGBT discrimination in fundamental aspects of life such as employment and housing, quickly got sidetracked into fears over men participating in women’s sports.
The issue became a central focus during the nearly four-hour congressional hearing before the House Judiciary Committee on the Equality Act, which would amend the Civil Rights Act of 1964 to ban anti-LGBT discrimination under federal law.
Avoiding the issue of general anti-LGBT discrimination, critics of the Equality Act claimed the bill would allow men to infiltrate the safe spaces of women. Key among those arguments was the assertion the bill would undermine girls’ sports by allowing transgender women to participate, or at least men who would feign being transgender women to win easy gold medals.
Julie Beck, a lesbian and former law and policy co-chair for Baltimore City’s LGBTQ Commission, testified against the Equality Act based on anti-transgender arguments, including opposition to transgender women in sports.
Among Beck’s assertions were that male rapists would go to women’s prison and assault female inmates, female survivors of rape would be unable to contest male presence in women’s shelters, men would dominate women’s sports and girls who would have taken first place will be denied scholastic opportunities.
“Everything I just listed is already happening, and it’s only going to get worse if gender identity is recognized in federal law,” Beck said. “The authors of this bill have done a lot of work to make it sound like gender identity is well understood and has been around for a long time, but it’s a new concept that can only ever refer to stereotypes and unverifiable claims.”
Instead of the prohibition on gender identity discrimination in the Equality Act, Beck urged the committee to approve legislation that would ban discrimination on sex-stereotyping, which she said could “equally cover both RuPaul and Caitlyn Jenner and their rights to housing and employment — but only if we accurately recognize everyone’s biological sex.”
Although Beck once worked as a gay rights advocate for the City of Baltimore, she was terminated for expressing anti-trans views and now has ties to the anti-LGBT Heritage Foundation and spoke recently at the organization in opposition to the Equality Act.
Presenting a more nuanced approach was Doriane Lambelet Coleman, a law professor at Duke University.
Coleman, who has worked on Title IX in terms of women’s participation in sports, said the Equality Act should be modified with respect to transgender women’s participation in sports in schools and federally funded programs.
“Those of us who are athletes know that separation on the basis of sex is necessary to achieve equality in this space,” Coleman said. “With respect, it is accepted, beyond dispute, that males and females are materially different with respect to the main physical attributes that contribute to athletic performance.”
Coleman added she thinks transgender women should be allowed to take part in sports, but the Equality Act should be modified to allow some basis for sex-based attributes, such as reduced testosterone levels, for transgender women’s participation.
Advocates of the Equality Act pushed back by insisting the legislation was about ending discrimination and transgender women should have equal opportunities in sports.
Rep. Val Butler Demings (D-Fla.) fumed over the concerns of sports, which she called a “technicality,” dominating the hearing about ending LGBT discrimination.
“You all know the history of our country,” Demings said. “Our past is so ugly in this area. I would think that we would all do everything we can within our power to make it right, but instead, we sit here today, at least my colleagues on the other side of the aisle and look for a technicality to continue to justify discrimination in what I do believe is the greatest country in the world.”
Defending the Equality Act as written was Sunu Chandy, legal director for the National Women’s Law Center, who said claims the Equality Act would jeopardize women in sports were spurious.
“There’s no evidence to support the claims that allowing trans athletes to play on teams that fit their gender identity will create a competitive imbalance,” Chandy said. “Trans children display the same variations of size, strength and athletic ability as other youth, and there’s no recorded instances of a boy pretending to be transgender, presenting as a girl to fraudulently join a sports team.”
Rep. Jerrold Nadler (D-N.Y.), chair of the committee, anticipated concerns about sports in his opening statement.
“Many states have sexual orientation and gender identity non-discrimination laws,” Nadler said. “All of them still have have women’s sports. Arguments about transgender athletes participating in sports in accordance with their gender identity having competitive advantages has not been borne out.”
But, nonetheless, Republicans on the committee sought to amplify these concerns about transgender women in sports to stir opposition.
Rep. Doug Collins (R-Ga.), top Republican on the committee, said the Equality Act would “harm countless people who understand themselves to be transgender and would demolish the hard-won rights of women, putting them at the mercy of any biological man who identifies at any moment as a woman.”
“The biological differences between the sexes remain scientifically certain,” Collins said. “Men are physically stronger than women, which has made it necessary for women to access clear legal protection.”
Asserting the Equality Act “privileges the rights of men who identify as women over biological women and girls,” Collins cited as an example two individuals in Connecticut who won ahead of a cisgender woman in a track and field event last year.
In response to that incident, Chandy said the women’s sports “haven’t been overcome” with transgender athletes winning races. Those two individuals in Connecticut, she said, went on to nationals, but one didn’t participate and the other came in 30th or 31st place.
Rep. Louie Gohmert (R-Texas), who has a notoriously anti-LGBT record in Congress, said although men competing in women’s sports may not be widespread now, “there is no question that problem will continue to arise.”
“I think when we consider laws to say something is equal like testosterone, the testimonies already indicate it’s clear in the medical literature, it does make a difference,” Gohmert said.
Asserting the Equality Act would amount to telling women “it’s just too bad” men should be allowed in their safe spaces, Gohmert concluded the Equality Act amounts to a “war on women that should not be allowed.”
After Gohmert’s remarks, Rep. Ted Deutch (D-Fla.) delivered a zinger questioning whether the Republicans were genuine in their concerns about women and not just finding reasons to oppose the Equality Act.
“There is now interest on the other side of the aisle in women’s athletics that has never existed before,” Deutch said.
Gohmert responded he’s the father of three girls and, in fact, does care about women’s issues.
Rep. Matt Gaetz (R-Fla.), famed for his tweets insinuating Trump’s former attorney Michael Cohen has engaged in adultery, said the bill would enable “bad actors who would exploit the provision for their own gain.”
That’s when Gaetz delivered his line ridiculed both in the media and with guffaws in the hearing room.
“Consider as a possibility if Trump were to say I am now the first female president,” Gaetz said. “Who would celebrate that? Would those who support the legislation think that’s a good thing, or would they be dismayed?”
With all opponents of the Equality Act making hay over claims the bill would compromise women’s rights, the stories of anti-LGBT discrimination were easy to miss, but nonetheless present.
Carter Brown, who founded Black Transmen, Inc. and spoke at the news conference, testified about the discrimination he faced on the job in Texas after being outed as transgender.
“Everything around me shattered,” Brown said. “In the months that followed, I was the subject of cruel office gossip and forced to endure invasive and offensive questioning from colleagues on the subject of my identity.”
After being isolated on the job and asked to use bathrooms inconsistent with his gender identity, Brown said he was fired.
Jami Contreras, a lesbian in a same-sex relationship in Michigan, testified about the experience about her infant child being denied treatment by a pediatrician, who referred the family to another physician based on religious concerns.
“My stomach sank, my eyes filled with water, and the lump in my throat felt like a rock,” Contreras said. “I remember staring at my new baby who was now being examined by a doctor we had never met and all I could think was, what have we done, how did we get here?”
Rep. Tom McClintock (R-Calif.) interrogated Contreras with a series of questions about whether her child’s care was inferior to what the initial physician would have offered. Contreras said she had no basis to know.
When McClintock asked Contreras whether she thinks a Jewish doctor with family who died in the Holocaust should be able to refuse to treat a Nazi patient, Rep. David Cicilline (D-R.I.), who’s both gay and Jewish, interrupted by pointing out Nazis aren’t a protected class.
Kenji Yoshino, Earl Warren professor of constitutional law at New York University, expanded on that point more fully before the committee, asserting religion is used “sometimes sincerely, sometimes opportunistic in order to undermine the edifice of civil rights.”
“Nazis are not a protected class,” Yoshino said. “What we’re trying to do here is make sure that transgender individuals and individauls who are gay, lesbian or bisexual are that protected class. They do not have to suffer the searing indignity Ms. Contreas went through.”
Cicilline, the lead sponsor of the Equality Act, touted the importance of the legislation in ending discrimination during his remarks at the hearing.
“LGBT people are more likely to live in poverty, and LGBT people of color experience some of the highest rates of poverty of any group in the United States,” Cicilline said. “This can be directly attributed to discrimination in employment, housing, and other areas that make it more difficult for people to maintain a job and earn a living wage. The Equality Act seeks to level the legal playing field so that all Americans have a chance to thrive.”