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Law & the Courts

Susan Collins Won’t Cosponsor Equality Act Again

Senator Susan Collins (R., Maine), speaks during a committee hearing in Washington, D.C., June 30, 2020. (Al Drago/Reuters)

In 2019, Susan Collins of Maine was the only Republican senator to cosponsor the Equality Act — legislation that would add sexual orientation and transgender status as protected classes under the 1964 Civil Rights Act — but Collins says she won’t cosponsor the legislation in 2021 because of unresolved problems in the bill.

The Washington Blade reports:

Collins, speaking to the Washington Blade in the basement of the U.S. Capitol on her way to the Senate floor, said she’d “not co-sponsor” the Equality Act when asked about her position on the bill.

The Maine Republican said changes she had sought, but didn’t immediately specify, weren’t made to the Equality Act when she was the lone Republican to co-sponsor the legislation in the previous Congress.

“There were certain provisions of the Equality Act which needed revision,” Collins said. “Unfortunately the commitments that were made to me were not [given] last year.”

Asked later to clarify what she meant by the remark — and whether it referred to advocacy groups or fellow lawmakers who made commitments — Collins’s press office issued the following statement to the Blade from Annie Clark: “Senator Collins is a longtime supporter of LGBTQ rights, and she has repeatedly stood up for the LGBTQ community, including at times when many of her colleagues on both sides of the aisle did not. … The Equality Act was a starting point for negotiations, and Senator Collins agreed to introduce it with the agreement that all of the cosponsors would work together to make further changes.  Unfortunately, they were unwilling to work out those changes. Senator Collins supports ensuring fairness and equal treatment of all Americans, regardless of their sexual orientation or gender identity, and she is considering all possible options to do so, including introducing her own bill.”

The Supreme Court’s Bostock decision in 2020 largely accomplished what advocates of a federal LGBT-rights law wanted, but the Equality Act would go much further than Bostock. On the homepage, I run through some of the problems in the bill:

As University of Virginia law professor Douglas Laycock told National Review, the Equality Act “goes very far to stamp out religious exemptions.”

Laycock, a longtime supporter of gay marriage and proponent of enacting a federal gay-rights law, explained that the Equality Act “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 second way the Equality Act goes far beyond the Bostock decision is that it adds “sexual orientation” and “transgender status” as classes protected under the 1964 Civil Rights Act’s Title II, which prohibits discrimination at public accommodations. (The Bostock decision didn’t touch federal public-accommodation law because Title II of the 1964 Civil Rights Act did not ban discrimination at public accommodations on the basis of sex.)

The Equality Act also greatly expands the number of businesses that count as “public accommodations” under the Civil Rights Act. It explicitly covers “shelters,” meaning that women fleeing violent men could be required to live in quarters with biological men who identify as women. It also explicitly covers salons, which creates some hair-raising concerns for women who work at such establishments.

But the biggest problem of all is how the Equality Act would affect schools.

The editors of The Economist — not exactly a bastion of social conservatism — recently warned congressional Democrats that the Equality Act “risks discriminating against female Americans” by requiring women and girls to compete against athletes who are biologically male but identify as female.

The Equality Act explicitly states that “(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.” As David French wrote in these pages in 2015: “Exposing a penis to girls in a public high school is generally considered an act of sexual harassment, not part of the sexual revolution.”

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