Hello, Equality Act
With Democrats looking likely to sweep the Georgia Senate races, basic LGBTQ human rights may finally be in reach
With Senator-elect Raphael Warnock’s victory and Jon Ossoff running ahead in the vote count in Tuesday’s Georgia’s Senate runoffs, it’s looking likely the Democrats will win back control of the upper chamber for the first time since 2010.
With Democrats in control of the House, Senate, and the White House, the stage is set for a laundry list of center-left legislation to be passed and signed into law, including environmental protections, gun control, and buffs to the Affordable Care Act, legislation that has been roundly ignored by soon-to-be Senate Minority Leader Mitch McConnell for the last decade.
Among the first priorities Democrats are expected to take up will be the Equality Act. The bill, at its base, would add LGBTQ people to the list of protected classes under federal civil rights law. It would also modernize existing law to incorporate public services like ride-sharing apps under the definition of “public accommodations.” Additionally, it would represent the largest expansion of sex-based protections under federal law in the last 50 years.
The Equality Act was one of House Speaker Nancy Pelosi’s first bills introduced; it eventually passed when Democrats retook the chamber two years ago, only to get buried in McConnell’s Senate. There’s reason to believe it will again be an early priority in the new Congress.
But there are potential obstacles standing in the way, especially if filibuster reform is ignored in the Senate. It’s likely there will be some Republican votes for the Equality Act in the upper chamber; Sen. Susan Collins (R-ME) has supported LGBTQ rights, and Republicans who are up for re-election in two years may look closely at supporting the bill in order to shore up suburban votes.
But just as with Employment Non-Discrimination Act (ENDA), introduced almost a decade and a half ago, trans rights will likely be another flashpoint during the debate over the bill. It’s no secret the political right despises the existence of trans people, specifically trans women. During a House Judiciary Committee hearing on the Equality Act in 2019, the chamber’s most ardent conservatives railed on, without evidence, about “men in women’s bathrooms” and “trans women dominating women’s sports” as potentially catastrophic results of the bill’s passage.
These concerns were echoed by Sen. Joe Manchin (D-WV), who has become one of the key powerbrokers in the closely divided Senate. In 2019, Manchin waffled on his support for the Equality Act, saying he had concerns about a “lack of clarity” on trans students’ access to school bathrooms.
The issue appears to be a family matter for Manchin. In a November 2018 incident, an assistant principal at Liberty High School in West Virginia allegedly harassed a trans student in a school bathroom. The school official allegedly confronted a 15-year-old trans boy in the boys’ room, reportedly taunting him to “come out here and use the urinal” in order to prove he was a real boy. The school official went on to say, “I’m not going to lie, you freak me out.”
After an initial suspension, the assistant principal later returned to work. At the center of the case was Dr. Mark A. Manchin, superintendent of Harrison County Schools, which oversees Liberty—and a cousin of Sen. Joe Manchin.
Sen. Manchin has cited what he said were concerns from local school administrators over trans bathroom access in the past, and it’s likely to come up as a topic of conversation at Manchin family gatherings. But Manchin should also listen to his state’s transgender population. According to a 2017 study by the Williams Institute at UCLA, West Virginia has the highest percentage of teens identifying as transgender in the U.S.
It remains to be seen whether a serious push to separate trans rights from the Equality Act will get underway in order to garner enough Senate votes for passage. That’s what happened with ENDA in 2007 and it nearly ripped the LGBTQ movement in two. Queer advocacy organizations will be eager to avoid repeating the fissure and are unlikely to bend to a trans compromise in this case.
What this means for the passage of the Equality Act in the next couple of months is a story still to be written.