This bill prohibits discrimination based on sex, sexual orientation, and gender identity in areas including public accommodations and facilities, education, federal funding, employment, housing, credit, and the jury system. Specifically, the bill defines and includes sex, sexual orientation, and gender identity among the prohibited categories of discrimination or segregation.

The bill expands the definition of public accommodations to include places or establishments that provide (1) exhibitions, recreation, exercise, amusement, gatherings, or displays; (2) goods, services, or programs; and (3) transportation services.

The bill allows the Department of Justice to intervene in equal protection actions in federal court on account of sexual orientation or gender identity.

The bill prohibits an individual from being denied access to a shared facility, including a restroom, a locker room, and a dressing room, that is in accordance with the individual’s gender identity.

Not surprisingly, the Equality Act is supported by the usual left-wing suspects like the ACLU, the Anti-Defamation League, the Southern Poverty Law Center, the NAACP, the AARP, and the National Organization for Women, the American Federation of Teachers, NARAL, Planned Parenthood, the American Psychological Association, and LGBTQ rights groups. But it is also supported by the U.S. Chamber of Commerce and many of America’s largest companies, including Apple, Amazon, Facebook, Twitter, Google, Microsoft, eBay, Starbucks, Kellogg’s, and Johnson & Johnson. It even has the support of some religious denominations and groups, including the Episcopal Church, the United Methodist Church, the United Church of Christ, and the Interfaith Alliance.

The Equality Act has been languishing in the U.S. Senate since March 1 of this year. It was introduced in the U.S. House of Representatives on February 18 and passed just a week later by a vote of 224–206. Every Democrat in the House voted in favor of the bill, but only three Republicans did. Although as of this writing, the Senate has not yet acted on it, the bill has a good chance of passing in the second session of the 117th Congress when Democrats see the handwriting on the wall that spells out “Republican landslide” in the 2022 midterm elections. The Republican alternative to the Equality Act, the equally misnamed Fairness for All Act, is no alternative at all if property rights mean anything.

Background

To understand the Equality Act, we must begin with the Civil Rights Act of 1964. It claimed to be:

An act to enforce the constitutional right to vote, to confer jurisdiction upon the district courts of the United States of America to provide injunctive relief against discrimination in public accommodations, to authorize the Attorney General to institute suits to protect constitutional rights in public facilities and public education, to extend the Commission on Civil Rights, to prevent discrimination in federally assisted programs, to establish a Commission on Equal Employment Opportunity, and for other purposes.

The Civil Rights Act was divided into 11 titles. Relevant to the subject of discrimination are Titles II, “Injunctive relief against discrimination in places of public accommodation,” and VII, “Equal employment opportunity.”

Title II of the Civil Rights Act addresses state and local government overreach:

All persons shall be entitled to be free, at any establishment or place, from discrimination or segregation of any kind on the ground of race, color, religion, or national origin, if such discrimination or segregation is or purports to be required by any law, statute, ordinance, regulation, rule, or order of a State or any agency or political subdivision thereof.

This is all well and good. Every citizen should be treated equally under the law by government of any type and at any level. But, unfortunately, the Civil Rights Act did not stop there. It further mandated regarding private businesses:

All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, and privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin.

“Public accommodations” was then defined as basically any establishment that served the public: hotels, motels, restaurants, gas stations, cafeterias, soda fountains, theaters, concert halls, arenas, stadiums, or other places of exhibition or entertainment.

Title VII of the Civil Rights Act prohibits discrimination in employment.

(a) It shall be an unlawful employment practice for an employer —

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or

(2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.

Title VII also established the Equal Employment Opportunity Commission (EEOC) to enforce anti-discrimination laws relating to employment.

The Civil Rights Act has been supplemented over the years by various laws designed to prohibit even more forms of discrimination in employment like age, pregnancy, and disability. The Civil Rights Act of 1968 instituted the Fair Housing Act (FHA) to prohibit discriminatory acts regarding the sale, rental, and financing of housing based on race, color, religion, and national origin. It was later amended to include discrimination based on sex (1974) and disability or familial status (1988).

In 2013, the Employment Non-Discrimination Act, or ENDA (S.815), passed the Senate with the help of 10 Republicans. It differed from all earlier anti-discrimination legislation in that it was designed “to prohibit employment discrimination on the basis of sexual orientation or gender identity.” The bill was never voted on in the House.

After several years of failure to pass the Equality Act in the House when it was controlled by Republicans, Democrats, who regained control of the House in the 2018 election, passed the legislation (H.R.5) by a vote of 236–173 on May 17, 2019. Only eight Republicans voted in favor of it. A similar bill (S.788) that was earlier introduced in the Republican-controlled Senate was never voted on. Like the current version of the Equality Act, it was designed “to prohibit discrimination on the basis of sex, gender identity, and sexual orientation, and for other purposes” by amending the Civil Rights Act to include sex, sexual orientation, and gender identity among the prohibited categories of discrimination or segregation in places of public accommodation and expand the Civil Rights Act’s categories of public accommodations.

The purpose of the Equality Act is “to expand as well as clarify, confirm and create greater consistency in the protections and remedies against discrimination on the basis of all covered characteristics and to provide guidance and notice to individuals, organizations, corporations, and agencies regarding their obligations under the law.” This is because for several years now, federal agencies and courts have been split on the issue of whether “sex” in the Civil Rights Act includes sexual orientation and gender identity. Most recently, the Supreme Court ruled by a vote of 6–3 in the case of R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity (together with two other like cases) that discrimination in employment on the basis of sex includes sexual orientation and gender identity. The Court concluded: “In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law.” But at most, this decision protects LGBTQ “rights” in employment matters only.

Fairness for All Act

The Republican alternative to the Equality Act is the Fairness for All Act. It was introduced in the 116th Congress (H.R.5331) on December 6, 2019, and referred to various committees, but was never voted on. It was then reintroduced in the 117th Congress (H.R.1440) on February 26, 2021, referred to various committees, and is currently languishing in the House. Like the Equality Act, it would prohibit “discrimination on the basis of sex, sexual orientation, and gender identity,” but at the same time protect “the free exercise of religion” by providing “certain benefits and exemptions to religious providers.” The bill would likewise expand “the definition of public accommodation to which sex discrimination laws apply.” However, exempted are

  • any building or collection of buildings that is used primarily as a denominational headquarters, church administrative office, or church conference center;
  • a place of worship, such as a church, synagogue, mosque, chapel, and its appurtenant properties used primarily for religious purposes;
  • a religious educational institution and its appurtenant properties used primarily for religious purposes;
  • in connection with a religious celebration or exercise: a facility that is supervised by a priest, pastor, rabbi, imam, or minister of any faith, or religious certifying body, and that is principally engaged in providing food and beverages in compliance with religious dietary requirements; or
  • any online operations or activities of an organization exempt under this section.

The legislation also “exempts a church or religious organization from claims of employment discrimination because of sexual orientation or gender identity under specified circumstances.”

The Fairness for All Act is supported by the National Association of Evangelicals (NAE), the Council of Christian Colleges and Universities (CCCU), the Seventh-day Adventist Church, and the Mormon Church. Its sponsor, Rep. Chris Stewart (R-Utah), patterned the legislation after similar legislation enacted in his home state that bans discrimination against LGBTQ individuals—except when it is done by “qualified” religious organizations. Supporters of the Fairness for All Act, like Mormon Church official Jack Gerard, argue that “the time has come for people of faith to acknowledge reality and seek a resolution that protects both LGBT civil rights and religious liberty.” The Fairness for All Act “is a serious effort to reach a sustainable and balanced resolution while there’s still time.”

Naturally, activist organizations, such as the Human Rights Campaign, oppose the Fairness for All Act because it provides “substandard protections for LGBTQ people” and has “massive loopholes” that upend “critical federal programs.” But they are not alone. Conservative organizations like the Heritage Foundation, the Family Research Council, Concerned Women for America, and Focus on the Family also oppose the legislation. According to the Family Research Council, the Fairness for All Act “is an ill-advised and poorly drafted bill that does not achieve its goal.” Rather, “it further complicates the issue,” “invites litigation,” and “does not adequately protect religious liberty or, for that matter, women’s rights, women’s privacy, women’s safety, children, parental rights, the medical profession, or even the LGBT community.” According to the Heritage Foundation, the Fairness for All Act “would force individuals and institutions to bow to transgender ideology, threatening privacy, safety, and fairness for women and girls.” In a letter to members of Congress, a group of conservative leaders expressed strong opposition to the Fairness for All Act “because it shares many of the dangerous characteristics of the Equality Act.” Because it elevates “sexual orientation and gender identity (SOGI) to the level of protected classes in the 1964 Civil Rights Act (CRA), this bill would codify a radical gender ideology and empower the federal government to punish citizens who believe sex is rooted in biology and that marriage is between a man and a woman.”

The Fatal Flaw

The Equality Act and the Fairness for All Act both suffer from the same fatal flaw: the attempt to provide equality and fairness for all but property owners. Supporters and opponents of both Acts all agree on one central idea: The federal government should seek to prohibit discrimination in “public accommodations” based on race, color, religion, sex, disability, age, or national origin. They only differ regarding whether sex should include sexual orientation and gender identity. Both groups believe that the Civil Rights Act in its entirety was good and necessary legislation. Both groups believe that “public accommodations” law trumps property rights. Both groups believe that government should punish acts of discrimination in the interest of equality and fairness. Both groups consider discrimination to be morally wrong (although in the case of the Fairness for All Act, if discrimination is immoral, then it doesn’t suddenly become moral just because it is based on some religious conviction). Both groups believe that government should decide whether acts of discrimination are reasonable, logical, rational, necessary, justified, or permitted (the government forces most employers to use E-Verify to confirm the eligibility of their employees to work in the United States and discriminate against “illegals” or “undocumented”). Both groups believe that government should limit freedom of assembly, freedom of association, free enterprise, and freedom of contract in the name of fighting discrimination.

Property ownership is defined primarily by control. Ownership is the right to the exclusive use of property. Government anti-discrimination laws directly violate property rights by reducing the control a business owner has over the operation of his business. These laws, as other government regulations on businesses, are a form of theft because of how they dilute owners’ property rights. They are akin to someone stealing a percentage of the profits of a business.

Refusing to sell a product, provide a service, or rent a dwelling has everything to do with property rights. Since no potential customer has a claim on the property of any business owner, he has no legal recourse if the owner of the property refuses to do business with him. “Public accommodations” are still private businesses. Just because they serve the public by offering to sell them goods or services doesn’t mean that they should be regarded the same as government agencies that have to service all members of the public. If a property owner cannot restrict whom he employs, whom he engages in commerce with, whom he rents or sells to, whom he admits or excludes, and whom he associates or contracts with, then he has no property rights.

Why is it that customers can legally discriminate against businesses but businesses cannot legally discriminate against customers? Why is it that workers can legally discriminate against employers but employers cannot legally discriminate against workers? Why is it that tenants can legally discriminate against landlords but landlords cannot legally discriminate against tenants? Why is it that borrowers can legally discriminate against lenders but lenders cannot legally discriminate against borrowers? Although acts of discrimination may be arbitrary or unjustified, this doesn’t change the fact that no one has the right to any particular job, membership, residence, good, or service. In a free society, the practice of discrimination must be an option for buyers and sellers as well as property owners and patrons.

In a free society, the right to discriminate is essential and absolute. A free society must include the freedom to discriminate against any individual or group for any reason and on any basis. A free society may or may not be free of discrimination, but it must be free of discrimination laws. By their very nature, the rights of private property, freedom of assembly, freedom of association, free enterprise, and freedom of contract include the right to discriminate. But not only are anti-discrimination laws an attack on these things, they are also an attack on freedom of thought. In a free society, everyone has the natural right to think whatever he wants—good or ill—about any individual or group and to choose to associate or not associate, in a personal or business capacity, with any individual or group on the basis of those thoughts. His thoughts may be erroneous, irrational, or illogical, and his opinions may be based on stereotypes, prejudice, or bigotry—but in a free society everyone is entitled to his own thoughts and opinions.

Since discrimination in any form is not aggression, force, coercion, violence, or threat, insofar as the law is concerned, it should never be considered a crime. And neither should it matter, insofar as the law is concerned, on what basis the discrimination takes place, the reason why the discrimination occurs, or what any individual or group thinks about it. Therefore, insofar as the law is concerned, the government should not proscribe it, seek to prevent it, or punish those who do it.

This article was originally published in the December 2021 edition of Future of Freedom.