Following the historic win for LGBTQ rights at the U.S. Supreme Court, Senate Democrats pushed Thursday for a vote on Equality Act to codify and expand those protections — but were thwarted by an Oklahoma Republican who cited “Harry Potter” author J.K. Rowling in remarks against moving forward with the bill.
Sen. Jeff Merkley (D-Ore.), the chief sponsor of bill, asked for unanimous consent to move forward with the Equality Act, which he said would guarantee “the opportunity for every individual to thrive in our nation,” after impassioned speeches from Senate Democrats.
“One colleague responded to the Supreme Court decision on employment non-discrimination earlier in week by saying this judicial rewriting of our law short-circuited the legislative process and the authority of the electorate,” Merkley said. “Well, let no member of the Senate today short-circuit the legislative process by objecting to the important debate on the floor of the Senate.”
Sen. James Lankford (R-Okla.), however, objected to the legislation, effectively filibustering it, after citing Rowling, who has come under fire for a recent essay widely regarded as transphobic that distinguished sex from gender identity.
“We don’t want anyone to be discriminated against, anyone, but we can do this in a way that accommodates everyone, and that we can actually work towards agreement,” Lankford said. “To say in the words of J.K. Rowling this past week where she wrote, ‘all I’m asking, all I want is for similar empathy, similar understanding to be extended to the many millions of women whose sole crime is wanting their concerns to be heard without receiving threats or abuse.’ Let’s work together to get equality. This bill does not do it in this form.”
The Equality Act was insufficient, Lankford said, because it makes no exemption for religious liberty and privacy issues, such as concerns from individuals who want to have a TSA agent of the same sex for pat downs at the airport.
The Supreme Court decision this week in the Bostock case instituted for the first time ever vast protections for LGBTQ people under federal law, securing a prohibition sought for decades by movement leaders against anti-LGBTQ discrimination in the workplace, but the Equality Act would take things a step further.
In addition to the explicit declaration that anti-LGBTQ discrimination is a form of sex discrimination in employment, education, housing, jury service and credit, the Equality Act would prohibit discrimination on the basis of sex and LGBTQ status in public accommodations and federal programs.
Further, the Equality Act would expand the definition of public accommodations under federal civil rights law to include retail stores, banks, transportation services and health care services. The legislation would also establish that the Religious Freedom Restoration Act — a 1994 law aimed at protecting religious liberty — can’t be used to enable anti-LGBT discrimination.
Among the Democrats who spoke out in favor of the Equality Act were Sens. Tammy Baldwin (D-Wis.), Ron Wyden (D-Ore.), Michael Bennet (D-Colo.) and Cory Booker (D-N.J.).
Baldwin, who has been discussed as a possible running mate for presumptive Democratic presidential nominee Joseph Biden, cited the Bostock decision written by U.S. Associate Justice Neil Gorsuch in her call for a vote on the Equality Act.
“While we have taken another big step forward, and it is a big step, in the march towards full equality for LGBTQ Americans, we are not there yet,” Baldwin said. “Lesbian, gay, bisexual, transgender and queer people face discrimination in many more aspects of their lives than the workplace. Our country needs to send a message that treating people unfairly because of their sexual orientation or gender identity is wrong and it won’t be tolerated. Period.”
Among the Republicans speaking out against the Equality Act were Sens. Josh Hawley (R-Mo.) and James Lankford (R-Okla.).
Sen. Mike Lee (R-Utah) identified two objections he had to the Equality Act and the Bostock decision earlier this week: No exemptions for religious employers and no accommodations for fears over transgender people in bathrooms and sports.
“The law needs to take into account certain questions regarding what impact the law might have on girls and women’s restrooms and locker rooms, girl’s and women’s athletics, single-sex safe places for people who are, for example, the victims of domestic or sexual abuse,” Lee said. “This law, like the Bostock decision, doesn’t operate with a lot of precision and sort of takes a meat cleaver to the issue without taking into account exceptions for religious entities and distinctions between sexual orientation and gender identity.”
Merkley’s effort to move forward with the Equality Act comes on the heels of a letter Senate Democrats sent to Senate Majority Leader Mitch McConnell urging a Senate vote on the Equality Act in the aftermath of the Bostock decision.
“We have a responsibility to reaffirm the principle that harassment and discrimination are not tolerated in our country,” Merkley said. “We urge you to bring the Equality Act for a vote because all people, regardless of their sexual orientation and gender identity, should enjoy the same protections under law that all Americans already enjoy on the basis of religion, race, gender, and more.”
The Blade has placed a request in with McConnell’s office seeking comment on whether he’d file for cloture to end Lankford’s filibuster of the Equality Act.
It should be noted Sen. Joe Manchin (D-W.Va.) of the Senate Democrats signed the letter, even though he had previously expressed opposition to the Equality Act and isn’t a co-sponsor of the bill. The Washington Blade has placed a request in with his office seeking comment on whether he now supports the legislation.
The Democratic-controlled House already passed the Equality Act in June 2019, so a vote in the Senate is the only thing keeping the legislation from heading to President Trump’s desk. Thus far, McConnell has refused to bring up the legislation for a vote. The White House has already signaled Trump opposes the legislation based on unspecified “poison pill” amendments in the bill.
Kristen Waggoner, general counsel for the anti-LGBTQ legal firm Alliance Defending Freedom, chided Senate Democrats in a statement for their failed attempt to bring the Equality Act up for a vote.
“Emboldened by the U.S. Supreme Court’s problematic decision Monday, some activists want to con Americans into believing that disagreement on important matters such as marriage and human sexuality is a form of discrimination that requires the government to enforce one view over another, but that is antithetical to a free society,” Waggoner said.
Senate Republicans rejected a vote on the Equality Act shortly before confirming McConnell protege Justin Walker, by a vote of 51-42, to the U.S. Court of Appeals for the D.C. Circuit. LGBTQ groups opposed Walker’s confirmation as part in coalition stand against the nominee based on his nomination by Trump and he made against the Affordable Care Act.
Alphonso David, president of the Human Rights Campaign, said in a statement prior to Walker’s confirmation the nominee “is another extreme, divisive and partisan judge being forced through by the Trump-Pence administration.”
“Walker has devoted his brief legal career to promoting discriminatory and outrageous rhetoric and attacking the Affordable Care Act, which has been crucial to providing life-saving treatment and care,” David said. “As our country continues to fight one of the most deadly public health crises in history, one that disproportionately impacts LGBTQ people and communities of color, Walker’s nomination is a tangible threat to the health of millions of Americans.”