Why are they supporting legislation that could arm the transgender movement’s efforts to silence dissent with the full force of the civil-rights bureaucracy?
NRPLUS MEMBER ARTICLE T he ongoing controversy about the meaning of gender is not an abstract issue. Recent years have wrought sweeping changes to the social contract in the name of accommodating the less than 1 percent of Americans who identify as transgender, including the rapid deconstruction of single-sex spaces in everything from sports to schools to prisons. This movement has material consequences: A slate of new blue-state laws allowing biologically male prisoners to transfer to women’s prisons under the nebulous guise of “gender identity” has raised serious concerns about women’s safety and has already led to allegations of sexual assault. Similar policies in public education have become a hot-button issue after gruesome recent allegations that the accommodation of gender identity directly enabled a series of sexual assaults in school bathrooms. And women’s sports have seen an influx of podium-topping biological males with innate physical advantages, depriving female athletes of college offers, scholarships, and any number of other opportunities.
Now, powerful activist groups are mounting a final push to make sexual orientation and gender identity (SOGI) a federally protected class under civil-rights law, stamping gender ideology with the legitimating imprimatur of the American legal regime. With all of the anti-discrimination protections afforded to race, color, national origin, religion, sex, age, and disability, such legislation would elevate transgenderism to the place of a fixed category with a positive right to affirmation in the public square. But perhaps more worryingly, it could arm the transgender movement’s already extraordinary efforts to silence dissent with the full force of the civil-rights bureaucracy.
So why do 21 House Republicans want to help make it happen?
Fairness for All?
Despite the recent surge of state-level conservative resistance to gender ideology — which saw eight states bar biological males from competing in women’s sports and two more ban gender-transition surgeries and puberty blockers for minors in the past year alone — 21 members of the House GOP are pushing forward with an effort to write SOGI into civil-rights law.
The Fairness For All Act (FFAA), an all-Republican bill that would make SOGI a federally protected class in return for certain “right to discriminate” carve-outs for dissenting religious institutions, was originally introduced in 2019 by Representative Chris Stewart of Utah. Stewart, whose district went for Donald Trump by 16 points in 2020 — up two from 14 points in 2016 — reintroduced the bill at the outset of the 2021 congressional session with the backing of such well-known Republicans as Elise Stefanik, Nancy Mace, and Burgess Owens. This is the full list of the FFAA’s co-sponsors:
- Chris Stewart (Utah)
- Fred Upton (Mich.)
- Elise Stefanik (N.Y.)
- John Curtis (Utah)
- Mark Amodei (Nev.)
- Brian Fitzpatrick (Pa.)
- Adam Kinzinger (Ill.)
- Andrew Garbarino (N.Y.)
- Blake Moore (Utah)
- Burgess Owens (Utah)
- Carlos Gimenez (Fla.)
- Chris Jacobs (N.Y.)
- Claudia Tenney (N.Y.)
- Jeff Van Drew (N.J.)
- Jenniffer González-Colón (P.R.)
- Maria Salazar (Fla.)
- Mario Díaz-Balart (Fla.)
- Mike Simpson (Idaho)
- Nicole Malliotakis (N.Y.)
- Steve Stivers (Ohio)
- Tom Reed (N.Y.)
When these 21 Republicans reintroduced FFAA in February, proponents of the legislation argued that it brokered a “compromise” between religious-liberty and anti-discrimination protections for LGBT Americans. Right-leaning backers maintain that the bill is the conservative alternative to the Equality Act, a much more radical Democratic bill that enshrines SOGI in U.S. civil-rights law without any of the religious-liberty protections offered by FFAA.
But in the months since, a number of controversies surrounding transgender policy have called the strategy into question.
Most recently, an October Daily Wire story reported that a boy wearing a dress had raped a 15-year-old girl in a Loudoun County, Va., public-school bathroom, which he was allowed to enter under the Virginia Department of Education’s “gender-affirming” approach toward traditional single-sex spaces. Critics say that FFAA would effectively federalize that gender-fluid policy framework, eroding any number of long-standing sex-based protections. “The bill prohibits discrimination in federally funded programs,” Ryan Anderson, the president of the Ethics and Public Policy Center, tells National Review. “That includes discrimination on the basis of so-called gender identity. So if your local school is receiving federal funding for the school-lunch program or something like that, that’s going to have a huge impact on all sorts of commonsense school policies that the Left will now say are discrimination on the basis of gender identity.”
Anderson warns, “The logical conclusion of this bill is the full abolition of sex-specific facilities. Why have separate male and female facilities and programs if not based on biological differences that make a difference? Fluid and spectral gender identities can’t justify them.”
As Goes Loudoun County, So Goes America
National Review reached out to FFAA’s co-sponsors to ask if the Loudoun County story had changed or otherwise affected their thinking on the legislation. Out of the 21 members of Congress asked for comment, only Representatives Stewart and Amodei responded.
Amodei’s office emphasized in a written statement that “protecting faith is important” and that FFAA was an attempt “to put religious institutions on the same playing field” as LGBT groups. “To people who have not bothered to inform themselves, the Fairness For All Act is focused primarily on clear conscience protections for faith-based employers and organizations, and has 21 total bill cosponsors, all of whom are Republican Members of Congress,” Amodei writes. The Nevada congressman’s statement does not address the specific question of the similarities between FFAA and the policies that allegedly enabled the assaults in Loudoun County.
Sitting down for an at-times-contentious in-person interview with National Review, Representative Stewart vehemently denied that the bill would lead to the weakening of sex-based protections for women as occurred in Loudoun County, arguing that the concerns about the bill raised by a range of conservative-leaning groups from the Heritage Foundation to the United States Conference of Catholic Bishops were “just wrong” and that the bill is “mute” on the question of access to single-sex spaces. “What’s happening in Loudoun County, you’d have to twist yourself into a pretzel to say my bill impacts that directly in any way,” he says. “[FFAA] is a broad expansion of LGBTQ protections with defined protections for religious liberty, which is my motive in wanting to press the bill. And honestly, I don’t understand how you tie that to Loudoun County.”
At the same time, Stewart argues, FFAA “actually eliminates or at least reduces the possibility of a Loudoun County because it requires the expansion of private [single-sex] spaces.” On top of that, he maintains that the bill would leave questions surrounding bathrooms, sports, women’s shelters, and other traditionally female spaces up to localities and states. “We don’t think the federal government should address them,” he says. “The states can. In certain cases, like in the example of women’s sports, the federations and governing bodies probably should, with input from the states. It’s not our intention to meddle into all of those questions — they’re just too emotional. And I gotta tell you, if you write an article that ties this to Loudoun County, I think it’s dishonest reporting.”
But others aren’t so sure about his claims. Anderson says Stewart’s assertion that FFAA would allow for a plurality of approaches to single-sex spaces is “simply false,” given that the bill would condition the receipt of federal funds on the implementation of transgender-accommodating policies by adding SOGI to the list of protected classes in Title VI of the Civil Rights Act. That would effectively ensure that biological males are granted access to women’s spaces in any activity or program that receives federal funding.
Moreover, the expansion of private single-sex spaces that Stewart referenced ostensibly protects “sex segregation or sex-specific programming.” But as Anderson points out, those protections are undermined by the fact that in the same sentence, the bill specifies that sex should be determined on the basis of gender identity, allowing for sex segregation only insofar as “individuals are treated in accordance with their gender identity.” Similarly, sex-based privacy accommodations for students in publicly funded institutions are only acceptable “provided that . . . the accommodation does not exclude any student from such a facility to which the student has a right of access or otherwise prejudice any right or privilege protected under this title.”
In other words, Anderson says, “you can provide a student with greater privacy provided you don’t violate the rights that FFAA creates for trans-identifying students to access facilities that correspond with their gender identities.”
Even the definition of gender identity is unclear under FFAA’s framework, Anderson worries. Rather than requiring an individual to have undergone surgery or hormone treatment to qualify as transgender, the bill holds that “a person’s gender identity can be shown by providing evidence, including medical history, care or treatment of the gender identity, consistent and uniform assertion of the gender identity, or other evidence that the gender identity is sincerely held, part of a person’s core identity, and not being asserted for an improper purpose.”
Stewart denies that this language is overly vague: “I think it’s as specific as it could possibly be.”
“Either he doesn’t understand what his bill does, or the lawyers who sold him on this have advised him poorly,” Anderson says.
Civil Liberties for Thee, State Power for Me
FFAA is clearly a priority for Stewart. It was one of the first five bills that the congressman introduced in the 2021 session, and he has continued to publicly push for its passage. Earlier this month, he touted the legislation at a gala hosted by the Log Cabin Republicans, where he was granted the LGBT advocacy group’s “Congressional Champion Award” for his “introduction and continued persistence for the Fairness For All Act.”
“This country can accommodate civil liberties for both LGBT individuals and religious freedom,” Stewart wrote on Twitter, posting a picture of himself accepting the award. “And I will not stop fighting until we do just that.”
FFAA’s backers regularly pitch the legislation this way, as a vehicle to protect the “rights” or “civil liberties” of LGBT groups. The state-based precursors to the bill have “been effective at safeguarding the rights of LGBT Americans,” argued a statement from Representative Claudia Tenney. Representative Carlos Gimenez maintained that “in a truly free society, individuals are free to express their true selves and live up to their fullest potential so long as their actions do not trample the rights of others.” And Utah Republican governor Spencer Cox praised “Rep. Stewart’s work to find a nuanced and good faith policy that both protects religious freedom and the rights of LGBTQ individuals to be free from discrimination.”
It is striking that conservatives would use this language. Unless one has embraced the left-wing framework construing “civil liberties” and “rights” as affirmative entitlements to the use of coercive state power, bills such as FFAA are not protecting “civil liberties” in the traditional sense of the word, nor are they balancing legitimate competing claims for “rights.”
The vocabulary of “civil liberties” and “rights” is only accurate as a description of one side of FFAA’s brokered arrangement — a sphere of liberty for certain religious institutions to conduct their affairs free of state persecution. Alternatively, individuals who claim SOGI status are afforded the awesome power of the federal bureaucracy to force all other dissenting Americans to adhere to their understanding of gender and sexuality in the provision of any number of nebulously defined goods and services. This is objectionable on both small-government and socially conservative grounds: Contra its framing as a “compromise” between religious liberty and expanded LGBT protections, FFAA wields government power to require an affirmation of gender ideology as a precondition for participation in much of public life, with a certain set of exceptions in particular corners of the political community.
And even on their own terms, those religious exceptions are questionable. FFAA protects the conscience rights of defined religious institutions — churches, religious charities, and so on. It does not protect most individuals, even if those individuals object to something like gender ideology on an authentically religious basis. Most businesses with more than 15 employees are subject to the legislation’s definition of “public accommodations,” meaning that they would run afoul of civil-rights law for objecting to the progressive line on gender and sexuality. Jack Phillips, the Christian baker who was dragged all the way to the Supreme Court for neglecting to custom-make a cake celebrating a same-sex marriage, might be safe so long as his business does not exceed 15 employees; but were he to expand to 16, he would be subject to the punitive whims of progressive bureaucracies such as the Colorado Civil Rights Commission, whose members have already made it their personal mission to drive Phillips’s small business out of existence.
But FFAA’s threats to the American constitutional order go above and beyond the rights of religious individuals and business owners. So-called “trans-exclusionary radical feminists” who reject gender ideology on the grounds that it erases women, physicians who do not want to mutilate children’s bodies by prescribing puberty blockers or performing irreversible sex-change surgeries, coaches who want to protect their female athletes from biologically male competitors, and any number of other secular dissenters from gender ideology are not afforded rights under FFAA’s framework. Rather, acting on the belief that men and women exist as distinct biological categories — let alone the belief that men and women exist for one another, both in terms of sexual ethics and the definition of marriage — would be viewed as legitimate only on religious grounds, and relatively narrow ones at that.
This is perhaps the most fundamental problem with the law, from a traditionalist perspective: By making SOGI a protected class in the eyes of the federal government, FFAA encodes into American law the fundamental lie that men can become women. That’s why conservative groups such as EPPC, Heritage, and USCCB — as well as the Alliance Defending Freedom, the Family Research Council, the Family Policy Alliance, Concerned Women for America, the American Principles Project, and the Southern Baptist Convention’s Ethics & Religious Liberty Commission — have all come out in opposition to the legislation, even as some large institutional religious players such as the Church of Jesus Christ of Latter-day Saints have backed it.
It’s also why the majority of the House GOP has not bought into the arguments made by FFAA’s Republican backers. “What this bill will do is use the hammer of the law to bludgeon people into submission who have dissenting views,” says Vicky Hartzler (Mo.), a strong opponent of the bill who is running for Senate in Missouri in 2022. “It also establishes a three-tier system of freedom and rights in this country. According to the federal government, it offers full protection to those who affirm same-sex marriage and transgender ideology, limited protection to those within selected religious organizations, and no protection at all for the majority of those who dissent from SOGI ideology.”
When pressed on these questions, Stewart bristles. “You can come up with a thousand scenarios for why you shouldn’t support this — because it doesn’t address this or it doesn’t address that,” he says. “But to kick at it, and say, ‘Well, what about this and what about this and what about this’ ignores the overall good it does.”
Compromise or Concession?
Does FFAA’s “overall good” justify the significant concessions it requires from conservatives? Critics argue that the legislation’s costs far outweigh its benefits. “The real question to ask [the bill’s supporters] is: Does the LGBT movement not have enough power already?” Terry Schilling, the president of the conservative activist group American Principles Project, tells National Review. “Because the last I checked, you get fired for opposing same-sex marriage, you get your bakery protested and shut down for not wanting to make gay wedding cakes, and you get fired from your job for not wanting to lie to students about their gender identity being separate from their biological sex.
“They already have a lot of power, and they’re abusing it,” Schilling says. “They’re using it to oppress people and to coerce them into embracing their worldview.”
Advocates argue that if religious and LGBT groups can agree to the “compromise” offered by FFAA, then the secured protections for religious freedom are worth the increased power it may afford to hostile actors in the LGBT lobby. However, while the bill is seen as a countermeasure to the Democrats’ Equality Act, it has yet to boast a single Democratic co-sponsor. Stewart maintains that support from the other side of the aisle is just around the corner, but the legislation has been in circulation for the better part of two years, and practically all of the most influential LGBT activist groups — including the Human Rights Campaign, GLAAD, Lambda Legal, and the ACLU — have come out in opposition on the grounds that it does not go far enough. A 2019 joint statement from the aforementioned groups blasted FFAA for creating “substandard protections for LGBTQ people with massive loopholes and carve-outs” and for “essentially licensing discrimination,” before going on to announce “nothing more and nothing less” than the Equality Act was acceptable.
In other words: Even as FFAA’s proponents pitch the bill as an effective compromise with the LGBT community, the most powerful LGBT institutions are explicitly stating that they are not willing to compromise.
“I think they’re being used by the LGBT community to ultimately enable the Equality Act to become law,” Hartzler says of Republicans who have thrown their weight behind FFAA. “This is just a first step. I have a lot of respect and affection for a lot of my Republican colleagues who are supportive of this, but I think they’re being naive.”
Hartzler calls it “very, very concerning” that 21 Republicans are now co-sponsoring the bill. “These people have been sold a bill of goods,” she tells National Review.
There is ample reason to believe that SOGI protections are not inevitable. In fact, all of the momentum seems to be on the Right’s side of the transgender issue. As APP’s Jon Schweppe wrote, “For all intents and purposes, the ‘Equality’ Act is dead this Congress. Republicans are well-positioned to take back the House and possibly the Senate in 2022. Joe Biden’s approval numbers are tanking. Republicans are taking on gender ideology like never before.” On top of all that, the Loudoun County story and broader concerns about the teaching of gender ideology in public schools helped propel Republican insurgent Glenn Youngkin to victory in the Virginia governor’s race, where culture wars in education featured as a top issue, and polls show that Americans are overwhelmingly uncomfortable with at least some aspects of the transgender movement. Why give up now? Rather than push FFAA as the only viable alternative to the Equality Act, why not just oppose all attempts to erode conscience rights?
FFAA is not a compromise, but a concession. It is an admission of defeat — a preemptive surrender — in one of the defining cultural battles of our time, just as Republicans nationwide are beginning to fight back.
Why are 21 Republicans legislating as if they have already lost?