Synopsis: The quick reintroduction of the ‘Fairness for All Act’ (H.R. 1440) in the 117th Congress should be a wake-up call for right-thinking Americans concerned about the rapidly-spreading contagion of ‘woke’ orthodoxy into all facets of our institutions and lives.
This legislation–like the similarly concerning and misnamed ‘Equality Act’ (H.R 5)–perpetuates fundamental untruths about human nature and would codify them into law. Furthermore, the Fairness for All Act renders tens of millions of religiously observant Americans as second-class citizens in a nation founded first on religious liberty and the freedom to live out one’s faith in the public square.
Policy Analysis: What’s in the Legislation?
The Fairness for All Act is sponsored by Rep. Chris Stewart (R-UT) and was first introduced in the 116th Congress under a well-meaning desire to carve out protections for religious groups and organizations amid increasing intolerance and discrimination for rightly embracing biology as an immutable characteristic at birth and a necessary societal building block.
The legislation’s entire foundation, however, is misguided and irreparably flawed. It is constructed upon the fundamental untruth, perpetuated by far-left activists and secular ideologues, that biology is a construct capable of alteration merely by the cognitive whims of an individual.
Definitional Concerns and Broad Statutory Impact
The bill defines so-called gender identity in Section 2 as “gender-related identity, appearance, mannerisms, or other gender-related characteristics of an individual, without regard to the individual’s designated sex at birth.” It further states that a person can prove their gender identity using medical history, evidence of treatment, or showing “consistent and uniform assertions of the gender identity.”
And the word ‘assertions’ is a critical but fitting slip underscoring the challenge proponents will have when attempting to codify such unmoored theories into statute. As Dr. Ryan T. Anderson has pointed out, even gender identity activists and proponents fail to provide a concrete definition of the term because it allegedly exists along a spectrum and can be fluid.
Like the Equality Act, H.R. 1440 would amend the Civil Rights Act to make sexual orientation and gender identity (SOGI) a protected class under federal law akin to race and religion. Among the many areas of life this bill would impact:
- Places of public accommodation such as public recreation areas, public restrooms, and parks
- Financial service providers such as banks, credit unions, and financial planners
- Medical service providers such as hospitals, clinics, rehabilitation centers, and mental health facilities
- Transportation service providers such as federal airlines, Amtrak, and public buses
- Taxpayer-funded federal programs such as food stamps, public housing, Medicaid, and the Obamacare exchanges
- Any educational institution or school at any grade level that receives federal financial assistance
- Foster care and adoption agencies that receive federal financial assistance
- Businesses with 15 or more full-time employees, which comprise roughly 85 percent of the entire private-sector workforce
- The Federal workforce, comprised of upwards of 2.1 million employees, and the Federal jury service
The ground that H.R. 1440 cedes is both all-encompassing and breathtaking.
Additionally, the bill affirmatively provides for biological males to enter girls’ bathrooms and dressing rooms in schools, places of public accommodation, and government facilities. It would allow biological males into battered women’s shelters that receive federal financial assistance. And while the bill text explicitly states that it has no effect on Title IX, the reality is that such language only serves as an accelerant for biological males to increasingly compete in women’s sports.
The justification for the bill’s questionable existence comes from the repeated carve-outs that the legislation provides for religious organizations, associations, and entities. In each section where rights are extended on the basis of SOGI, the bill includes an exclusion for religious entities in a failed attempt to ‘protect’ their First Amendment rights.
H.R. 1440 mirrors legislation like the ‘Equality Act’ and bans adoption agencies from discriminating on the basis of sexual orientation and gender identity. It attempts to differentiate itself, however, by establishing an indirect federal funding program for religious organizations involved in adoption and foster care. This convoluted approach is intended to create a pathway for such organizations to continue to receive government assistance without being punished for believing humanity is divided into two distinct sexes: male and female.
Yet, the so-called solution is a burdensome approach that would provide a certificate to prospective and qualified foster and adoptive parents for an allotment of as-yet-undetermined money to use for the costs of going to a private adoption agency.
The bill states in Section 610 that state and local governments cannot discriminate against private adoption agencies for their views on marriage and biology. However, the bill text says licensed agencies cannot be prohibited from participating in the indirect funding program.
This is a critical flaw. For agencies in more progressive states, the legislation provides zero protection from progressive state governments passing laws requiring adoption and foster care agencies to affirm SOGI language into their practices in order to become licensed.
As has already been seen in states like Massachusetts and Pennsylvania, adoption agencies that hold a traditional view of marriage have been boxed out by state and local laws from operating unless they betray their deeply-held beliefs protected by the First Amendment. A decision from the U.S. Supreme Court in the Pennsylvania case, Fulton v. City of Philadelphia, is expected in June.
The war against faith-based adoption agencies has become so widespread and sustained that the evangelical Bethany Christian Services recently caved, abandoning core theological tenets in order to continue to operate their foster care and adoption agencies.
This is the ultimate political intent of gender identity activists: to erase opposing views held by the vast swaths of both religious and non-religious Americans from the public square through government-imposed force.
H.R. 1440 amends the employment section of the Civil Rights Act of 1964, compelling employers with 15 or more employees to adopt SOGI language into their business and hiring practices lest they be punished under federal law as engaging in ‘unlawful employment practices.’
Such violations could result in forced back-pay, forced re-hiring of a poorly-performing employee, and other fines and financial penalties deemed ‘equitable’ and appropriate by a court.
This arbitrary criterion also means the legislation would impact roughly 85 percent of all private-sector employees.
While the bill explicitly states in Section 4 that employees cannot be demoted, fired, or retaliated against for believing marriage is between one man and one woman, there is no such statutory protection for espousing the scientific view of biology.
To make matters worse, the language also gives employers the ability to discriminate against and punish their employees if the employee’s expressed views on marriage “directly and materially impedes the employee’s performance of an essential job function.”
This broad language will undoubtedly be abused and serve as a silencing mechanism against the constitutionally protected free expression of millions of working Americans.
Lastly, the addition of a severability clause should be a red flag. This poses a potential threat even to the inadequate religious liberty ‘protections’ in the bill as such language provides a pathway for an activist judge to throw out the religious carve-outs and exemptions while maintaining the rest of the SOGI language.
Implications: Bipartisan Permission to Divide and Discriminate
While much of the policy oxygen concerning SOGI legislation has been sucked up by House passage and Senate debate of the radical ‘Equality Act’ (H.R 5), H.R. 1440 concedes nearly the entirety of the public debate regarding so-called gender identity to the lies of modern far-left narratives.
The consequences of this preemptive surrender to an ill-defined and radical attempt to reorder American civilization are far-reaching. Among the widespread and destructive lies forced upon American citizens and civil society by this bill:
- The implication that people of faith are inherently bigoted for embracing a traditional view of marriage and basic human biology
- The false and unscientific view that biology is fluid and a mutable social construct that can be altered merely by the cognitive choice of an individual
- The narrow and wrongheaded notion of religion as something confined within specific houses of worships, associations, or entities instead of being something lived out by citizens in the public square
- The unfounded notion that it is namely or only religious Americans who hold traditional views on marriage and basic human biology
- The misguided view that public policy affirming male and female biology is immoral
The practical impact of these realities would unnecessarily and irreparably deepen the rapidly multiplying sectarian divides in American society.
For American citizens–religious or otherwise–H.R. 1440 opens up a Pandora’s box of chaos. For starters, religious Americans and organizations would be categorized, even unintentionally, as second-class citizens in need of special language to ‘protect’ them moving forward. It immediately puts millions of Americans on a hostile footing with both their fellow citizens and their own government.
Employers would face a slew of lawsuits, despite language attempting to protect from frivolous lawsuits. These lawsuits would come from all sides: both from employees whose constitutional rights to free expression would be routinely violated and from individuals who claim a gender different from their own biology and face termination for work-related reasons, but see an opportunity to cite discrimination instead.
Women and girls would face immediate discrimination and unnecessary obstacles when it comes to athletics, going to the restroom in public facilities, or maintaining privacy in the workplace. Indeed, under the construct of H.R. 1440’s gender theory, the ability to even statutorily define a woman becomes complicated and possibly irreconcilable with the fluid nature of gender identity.
Physicians who fundamentally oppose unproven gender-affirming remedies such as transition therapy for gender dysphoria have no explicit protections in H.R. 1440. This despite recent studies showing transition therapy failing to alleviate the mental health issues of those suffering from gender dysphoria.
Indeed, under H.R. 1440, adults affiliated with medical service providers–including mental health institutions–would be prohibited from helping children suffering from gender dysphoria by attempting to match their minds and cognitive development to their biology.
The disruptive fissures in American society inflicted by H.R. 1440 would be immediate, long-lasting, and devastating.
The instinct to protect the constitutional rights of Americans who refuse to accede to radical viewpoints on marriage and biology is correct. However, H.R. 1440 not only fails in the stated objectives of its authors, but also affirmatively embraces most of the radical and unconstitutional excesses of the ‘Equality Act.’
Ultimately, the policy results from the passage of H.R. 1440 would be no different than those of the ‘Equality Act.’ Yet the political and cultural consequences would arguably be worse: bipartisan members of Congress embracing the lies of radical gender theory activists while providing the very statutory permission to categorize Americans of faith as bigots in need of special exemptions to maintain their “archaic” viewpoints on marriage and biology.
H.R. 1440, like the ‘Equality Act,’ pits Americans against one another, embraces fundamental untruths about basic human biology, fails to secure the constitutional rights of tens of millions of Americans, and uses the force of government to impose a radical reordering of civilization.
Simply put, it is legislation antithetical to a revitalized American civil society. It cannot be salvaged.
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