In Favor of the 2019 Equality Act: A Comment on Burt

Let me begin by briefly outlining the reasons why I disagree with Professor’s Burt’s (2020) rationale for reformulating the 2019 Equality Act. First, her opposition to the current version of the Act stems from her belief that merging sex with gender identity encroaches on women’s rights. This argument is almost entirely outside the realm of current legal theory and practice in the United States. It ignores the fact that the LGBT community and its allies (men and women, gay and straight, transgender and cisgender) had long fought for an interpretation of sex discrimination that encompasses discrimination on the basis of gender identity, sexual orientation, and sex stereotypes and that the Act establishes that they succeeded in persuading the courts and the Obama administration to accept this broad definition of sex discrimination.

Second, I believe she has not made a sufficient case for her claim that the Equality Act would harm women. Emphasizing that she does not want to suggest that transgender women (individuals who identify as women and were assigned to the male gender at birth and given male birth certificates) are dangerous, she believes the Act would allow, or even encourage, cisgender men to present as women and invade women’s sex-segregated spaces—such as bathrooms or locker rooms—to prey on them. There are ample data, however, from jurisdictions with anti-discrimination laws that cast doubt on these assertions. Moreover, perhaps unwittingly, this helps perpetuate discrimination against the transgender community by echoing the arguments of opponents of transgender equality.

Third, although Professor Burt states she supports gender equality in the workplace, she wants access to bathrooms and other sex-segregated spaces to remain segregated by biological sex. However, if transgender individuals are to achieve equality in workplaces or schools (as well as to avoid being singled out and embarrassed for their nonconformity), they must be permitted to enter the restrooms of the gender with which they identify on an equal basis with their cisgender co-workers and fellow students. Revising the Equality Act to exempt women’s spaces would sacrifice the principle of gender equality upon which the Act is based.

The main premise of Professor Burt’s article is that the 2019 Equality Act disadvantages women by blurring the distinction between sex discrimination and gender identity discrimination. According to her, the Act undermines “women’s sex-based rights by redefining sex to include gender identity and sexual orientation, which . . . creates a clash between sex-based and gender identity-based rights” (p. 363). In doing so, she argues, the Act privileges the transgender community, especially transgender women, by allowing them into women’s traditional sex-separated spaces, such as restrooms, locker rooms, and prison facilities. Her arguments extend to sports competitions and medical care, but because it primarily focuses on intimate spaces such as bathrooms, I will limit my comments to bathroom arrangements.

Characterizing the “form” of the Act as objectionable, she advocates that it be modified to specify that sex, based on biological attributes, and gender, based on social construction, are distinct and should not be treated as single entity under the law. In conflating sex with gender, she argues, the Act obliterates sex-based provisions in U.S. law that recognize biological differences between the sexes as well as acknowledge women’s historical oppression.

Her critique fails to acknowledge how the Act has evolved over time and reflects the degree to which sex and gender identity have been merged in federal law for almost a decade. Reviewing the origins of the 2019 Equality Act will help explain how it evolved into its current form and how it seeks to guarantee rights of both sexual minorities and women, groups that have been subject to historical discrimination for decades.

The present-day Equality Act arose from a bill sponsored by Representatives Bella Abzug and Ed Koch, Democrats from New York. The first federal law to protect gay men and lesbians, the Equality Act of 1974 would have amended the 1964 Civil Rights Act to ban discrimination because of sexual orientation, sex, and marital status in housing, public facilities, public education, federally assisted programs, and public accommodations. And predating the 2009 federal hate crimes law and the Violence Against Women Act, it lent the federal government’s support to enhancing the safety of individuals targeted because of their sex, marital status, or sexual orientation. The bill failed, having never gotten out of the House committee to which it was referred; a version of the bill continued to be introduced from 1975 to 1992, with none clearing the House.

Gay rights advocates then shifted their efforts to the Employment Non-Discrimination Act (ENDA), a narrower law aimed at employment rights only. The closest ENDA came to enactment was when it lost by only one vote in the Senate in 1996. Largely propelled by the efforts of the Human Rights Campaign, the bill, excluding transgender rights, was reintroduced almost every year. In 2007, gender identity was initially included as a protected classification, but because of concerns that it would doom the entire bill, it was dropped before the vote; it too failed to pass.

With increasing pressure from LGBT rights groups and support from civil rights advocacy groups, the 2009 version of ENDA included a prohibition against discrimination in employment on the basis of gender identity (see Goldberg et al., 2014). The expanded ENDA passed the Senate in 2013 but did not clear the House.

In 2015, ENDA was replaced by the Equality Act, introduced in the House by Rhode Island Democrat David Cicilline. Under its new title, the bill was repeatedly introduced in the House and Senate, again with no success. Eventually passing in the House in 2019, its sponsors intended the Equality Act to mount a comprehensive attack on discrimination based on sex, gender identity, sexual orientation, and sex stereotyping by guaranteeing equal rights in public and private sectors.

The bill expanded the definition of places of public accommodation and was the first federal law to include a prohibition against discrimination in places of public accommodations based on sex; it also codified sex stereotyping, as originally envisioned in a U.S. Supreme Court ruling in a 1989 employment discrimination case. After it cleared the House, the bill was sent to the Senate and referred to committee but has not advanced in the Trump administration. Opposition to the bill has been primarily mounted by religious groups on the grounds that it would infringe on religious freedom. Bill supporters argued that federal laws banning sex discrimination had already been extended to discrimination because of gender identity, sexual orientation, and sex stereotypes.

Section 2a(9) of the Act noted that “Numerous provisions of Federal law expressly prohibit discrimination on the basis of sex, and Federal agencies and courts have correctly interpreted these prohibitions on sex discrimination to include discrimination based on sexual orientation, gender identity, and sex stereotypes” (emphasis added). Thus, the proposed bill endorsed the existing interpretation of most of the lower federal courts—and eventually the United States Supreme Court—and federal agencies, such as the Departments of Justice, Labor, and Education as well as the Equal Employment Opportunity Commission, all of which had already adopted the position that discrimination because of sex encompasses discrimination based on sexual orientation, gender identity, and sex stereotyping.

In light of the absence of anti-discrimination laws in most states and the need for federal civil rights legislation to guarantee equal rights for sexual minorities and women, the 2019 Equality Act encapsulated a progressive understanding of sex discrimination and was considered a milestone by the LGBT movement and its allies (Lopez, 2019).

The Equality Act would combat discrimination by guaranteeing equal treatment in employment, public accommodations, jury service, consumer credit, public facilities, housing, and public education. As a strategic matter, while the earlier 1974 Act would have amended the 1964 Civil Rights Act, the current version of the Equality Act would add protections to existing civil rights laws such as the 1964 Civil Rights Act, the Fair Housing Act, the Equal Credit Opportunity Act, and the Jury Selection and Service Act. The bill sponsors adopted this approach so that gender identity, sexual orientation, and sex-based stereotypes would be added to the existing protected classifications, such as race and sex already covered in these laws (Human Rights Campaign, 2020). If passed, it would be the most far-reaching civil rights law in the nation’s history, joining the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act and the Violence Against Women Reauthorization Act to specify explicit protections for the LGBT community in federal law.

Against this backdrop, I do not believe Professor Burt’s criticism of the Act is justified. Although she claims to support its goals, her revisions would negate the principle of equal treatment under the law for transgender individuals. She rejects the law in its current form, because in her view, it undermines the separation of men and women, based on their biological attributes, as indicated on their birth certificates; without such separation, she contends, women will be placed in jeopardy.

She states that she does not believe the danger emanates from transgender women. But while she does not accuse them of being predators, she argues that the Equality Act would allow men to appear as women and attack women in their private spaces and/or falsely claim to be transgender women to avoid punishment. She is concerned that such men can simply claim to be transgender women without having to offer proof of any kind.

Her argument for maintaining sex-separated bathrooms relies mostly on anecdotal evidence and does not acknowledge that anti-discrimination measures do not repeal existing laws against harassment, assault, and rape in bathrooms; moreover, a number of states specify that gender identity may not be used as a defense for improper behavior (see GLAAD, 2017). Myriad studies have found no evidence that gender identity anti-discrimination measures enacted in over 200 cities and almost two dozen states are associated with incidents of rape, assault, or harassment in shared public facilities (National Taskforce to End Sexual and Domestic Violence against Women, 2016; see Movement Advancement Project, 2016; Saidel-Goley, 2016).

One of the achievements of the Act would be to negate legislation such as North Carolina’s H.B. 2, the law requiring transgender individuals to use the restrooms and locker rooms of the gender they were assigned at birth, as opposed to the gender with which they identify. Almost a dozen states considered legislation such as H.B. 2 in 2015 and almost two dozen in 2016. With H.B. 2 in effect, individuals could be compelled to show their “correct” birth certificates when their gender identity does not match their biological sex before being allowed to enter public bathrooms. The failure to produce a proper birth certificate would lead to public humiliation and exclusion. Only an amended birth certificate, difficult to get and requiring court orders in some states, would allow individuals to use the restrooms of the gender with which they identify.

Further, most studies suggest the danger in public restrooms is directed at transgender individuals and laws such as H.B. 2 would illogically force individuals who present as men to use women’s restrooms and individuals who present as women to use the men’s restroom. More generally, studies show that transgender persons, especially transgender women, are more likely to be victims themselves of violence, including homicide (CNN.com, 2017; see Human Rights Campaign, 2017).

The essence of her argument is that Equality Act “prioritize[es] the rights, feeling, dignity, and safety of those who feel like or identify as women over born females” (p. 389). She believes that women face discrimination “on a much larger scale” (p. 389) than transgender individuals and because their oppression is greater, she wants to recalibrate the Equality Act so that women’s rights outweigh transgender rights.

She offers suggestions to attempt to reconcile transgender rights and bathroom privacy, but none would have the force of law; instead, they are left to the voluntary efforts of government and businesses and would maintain the legal distinctions based on biological differences between the sexes. She would, for the most part, deny individuals the right to amend their birth certificates, thus permanently classifying individuals as the gender they were assigned at birth, essentially negating their transgender status.

Although she stresses she is opposed to discrimination based on gender identity and sexual orientation in such “neutral” areas as employment and housing, she would continue to use biological sex as the dividing line in other arenas. And while recommending more creative arrangements of bathroom and other intimate spaces, her insistence on retaining sex-separated bathrooms would continue to force transgender individuals to be singled out and compelled to enter potentially unsafe spaces.

Professor Burt’s recommendations seem to assume that it is possible to isolate areas of discrimination based on gender identity. For example, much of the litigation arises from transgender individuals’ use of bathroom space in the education, employment, and housing contexts. Typically, transgender persons ask their employers or school principals to consent to the use of restrooms of the gender with which they identify; these requests are either denied or, if granted, are opposed by co-workers or other students and the permission granted is reversed. Thus, while they have not been subject to employment discrimination per se, the result is the same and Professor Burt would have the law offer no redress. Surely women’s rights matter, but her approach unabashedly preserves their rights at the expense of transgender equality because, in her view, women are more oppressed.

The Equality Act was intended to protect one of the most vulnerable minorities in the nation by eliminating laws and policies that allow discrimination against individuals whose gender identity differs from that assigned at birth. Professor Burt is correct in saying that women face a significant amount of discrimination in society, but the remedy for such harm to them does not lie in negating transgender equality.