On the surface, the goal of H.R. 5: ‘To prohibit discrimination on the basis of sex, gender identity, and sexual orientation, and for other purposes,’ is an important one. The Equality Act will amend portions of the Civil Rights Act of 1964 to include the words ‘gender identity’ and ‘sexual orientation,’ which at first glance makes sense. All citizens deserve equal protection under the law. There’s no argument there, but upon further reading, the Act creates a hierarchy between sex and gender identity placing the latter at the top. Under the sections titled ‘Unlawful Employment Practices’ and ‘Other Unlawful Employment Practices,’ it states: ‘in a situation in which sex is a bona fide occupational qualification, individuals are recognized as qualified in accordance with their gender identity.‘ Gender identity is an individual’s internal sense of being male, female, neither or something in between. It is subjective and according to quite a few sources, expansive.
There are gender identities like pangender, which includes more than one gender identity and genderfluid, wherein an individual’s identity shifts between different genders. If a job specifically requests a person who identifies as a woman, would someone who’s pangender or genderfluid be able to apply or only those who identify exclusively as women? If a job indicates sex as a specific qualification because of the service population, for example, a position where an employee would be in regular contact with cisgendered women who suffered traumatic abuse or a role that works closely Jewish men, what consideration is made for the service population and whether or not their needs will be appropriately met?
Different gender identities have different lived experiences. Does that matter for sex specific occupations? Why or why not? What, if any, protections will the federal government make to ensure that the self-reported model is not abused?
Abuse is a very serious subject to address especially as it pertains to another amendment in the Equality Act: ‘(with respect to gender identity) an individual shall not be 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.‘ Again, there are a few gender identities which do not align with male or female, which facility should these individuals use? Is it fair that they should have to choose when those aligned with other gender identities do not? Are there concerns that people who are unwell or deceptive will identify as a specific gender for inappropriate purposes? Why or why not?
These questions, anchored not in transphobia or discrimination, are what’s holding the Equality Act back. To gain support, it will be necessary to: explain the shift from an objective standard to a subjective one, show how faith based employers will be able to meet the requirements without breaking with moral standards established within their beliefs and focus on why the country will be better.
Call me naïve, but I believe people can be convinced with a good argument or at the very least, they’ll be reduced to simply saying, ‘that’s just what I think/believe.’ It’s not enough to want to be on the right side of history, it’s even better to be clear about why it’s the right side.