Politics & Policy

How Extreme Is the Equality Act?

Democratic leaders including Senate Democratic leader Chuck Schumer (D, N.Y.) cheer as they gather to announce the introduction of the Equality Act at the Capitol building in Washington, D.C., March 13, 2019. (Leah Millis/Reuters)
It’s reasonable to think that a bill backed by 2020 Democrats could force female beauticians to wax male genitals.

One of the crazier stories of last week came out of Canada.

Jessica (formerly Jonathan) Yaniv, who identifies as a woman but has the anatomy of a man, has launched a crusade to force female beauticians to wax the genitalia of biological men who identify as women. Yaniv’s case against female beauticians is now before the British Columbia Human Rights Tribunal, and National Review’s Madeleine Kearns, Reason’s Robby Soave, and the Toronto Sun have all documented the hair-raising (sorry) details.

The story has been good for a few laughs. “It’s a sad state of affairs when a lady can’t have her hairy balls waxed,” tweeted comedian Ricky Gervais. But it’s no laughing matter for the salon owners who have been harassed. Yaniv’s case raises serious questions about just how far LGBT-rights laws, not only in Canada but also in the United States, would go to coerce dissenters.

In the United States, the House of Representatives in May passed the Equality Act, with the support of 236 Democrats and eight Republicans. The bill would add “sexual orientation” and “gender identity” to Title II (which bans discrimination at public accommodations) and Title VII (which bans employment discrimination) of the Civil Rights Act of 1964.

“Serious question: If the Equality Act becomes law someday, would salons have to wax testicles of transwomen (as in the Jessica Yaniv case in Canada), or be guilty of civil-rights law violation?” asks Rod Dreher of The American Conservative.

The text of the bill explicitly includes salons under its definition of “public accommodations” where transgender discrimination would be illegal: “any establishment that provides a good, service, or program, including a store, shopping center, online retailer or service provider, salon, bank, gas station, food bank, service or care center, shelter, travel agency, or funeral parlor, or establishment that provides health care, accounting, or legal services.”

“The [waxing] business is clearly covered” under the Equality Act, University of Virginia law professor Douglas Laycock tells National Review in an email. The only question is whether a judge might find an exception once American salon owners were taken to court. “Some personal privacy defenses have been read into Title VII for jobs dealing with intimate body parts. But it’s hard to be confident the same thing would happen with the Equality Act. And here it’s the business, not an employee or customer, seeking the exception,” Professor Laycock adds.

Laycock is a longtime supporter of gay marriage and enacting a federal gay-rights anti-discrimination law, but he doesn’t support the Equality Act, because it would “crush” religious dissenters. The Equality Act “goes very far to stamp out religious exemptions,” Laycock told NR in May. “It regulates religious non-profits. And then it says that [the Religious Freedom Restoration Act] does not apply to any claim under the Equality Act. This would be the first time Congress has limited the reach of RFRA. This is not a good-faith attempt to reconcile competing interests. It is an attempt by one side to grab all the disputed territory and to crush the other side.”

The Equality Act would have sweeping implications for private religious schools and non-profits, such as adoption agencies, that believe that marriage is a union between a man a woman and that a human being’s gender cannot be changed. The bill would likely force schools, even religious ones, to grant teenage boys who identify as girls access to girls’ locker rooms and open-bay showers. (As National Reviews David French has written: “Exposing a penis to girls in a public high school is generally considered an act of sexual harassment, not part of the sexual revolution.”)

The Equality Act may be extreme, but it has almost universal support among Democratic politicians. Presidential front-runner Joe Biden has said it is his top legislative priority. “It will be the first thing I ask to be done,” Biden told LGBT-rights activists in June.

“The Equality Act just passed the House, sending a clear message that discrimination against LGBTQ* people won’t be tolerated,” Kamala Harris tweeted in May. “No one should ever be denied work, service, or a place to live because of who they are or who they love. I urge the GOP to bring it to the Senate floor.” Elizabeth Warren, Bernie Sanders, and Pete Buttigieg back it, and Andrew Sullivan writes at New York magazine that every other 2020 Democratic candidate does too: “According to British Columbia’s definition of human rights . . . female-only salons have to accept every woman, including those with balls. And according to the proposed Equality Act, the gay lobby’s chief legislative goal, backed by every Democratic candidate, it would be a human right in America as well.”

Do Democratic presidential candidates support any exceptions for religious adoption agencies, high-school locker rooms, or beauty salons? If so, why aren’t those exceptions in the text of the bill? These are questions the candidates haven’t been asked yet. The Democratic debates this week would be a great place to ask them.

Editor’s Note: This article has been emended since its initial publication.

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