A Republican compromise bill that seeks a middle ground on LGBTQ rights and religious freedom is set to emerge as the U.S. House is about to vote on the Equality Act — and for the first time with Democratic support — although critics say it would amount to a legalized right to discriminate against LGBTQ people.
Rep. Chris Stewart (R-Utah) is set Friday to reintroduce the Fairness for All Act, legislation he proposed last year as a solution to gridlock on LGBTQ rights at the federal level, with support from major religious groups, like the Church of Latter-day Saints, the Council of Christian Colleges & Universities and the Seventh-Day Adventist Church.
The bill was initially set for introduction on Wednesday, the day before the House vote on the Equality Act sponsored by Rep. David Cicilline (D-R.I.), but that was pushed back to Friday. A Republican source close to the bill said introduction was delayed to accommodate requests from Democrats who support the need for compromise.
Madison Shupe, a Stewart spokesperson, told the Washington Blade on Wednesday she expects bipartisan support for the Fairness for All Act upon introduction, signaling the legislation would for the first time have Democratic co-sponsors.
“We plan on introducing the Fairness For All Act on Friday,” Shupe said. “We believe we will have bipartisan support by the end of the week.”
Like the Equality Act, the Fairness for All Act would amend all aspects of federal civil rights law to expand the prohibition on discrimination against LGBTQ people in employment, housing, public accommodations, federally funded programs, education, credit and jury service. A Republican source close to the bill said it isn’t expected to have substantive changes in terms of LGBTQ issues, but clarify protections based on race, color, and national origin.
But the two bills, as they have been introduced previously, have key differences. For example, the Equality Act would specify the 1993 Religious Freedom Restoration Act couldn’t be raised as a defense in court against allegations of illegal anti-LGBTQ discrimination, but the Fairness for All Act would not.
Additionally, the Fairness for All Act would provide an exemption under Title II of the Civil Rights Act to allow stores, shopping centers or online retailers to refuse service to LGBTQ people if they have 15 or fewer employees, but the Equality Act provides no such exemption. The Equality Act would clarify transgender people should have access to locker rooms and bathrooms consistent with their gender identity, while the Fairness for All Act implies that but doesn’t spell it out. The Equality Act is silent on whether its ban on sex discrimination would prohibit medical providers from refusing to perform an abortion, the Fairness for All Act specifies it would not.
Parker Molloy, editor at large for Media Matters of America, was among those decrying the Fairness for All Act on Twitter as a backdoor way to enshrine religious carve-outs to civil rights into law.
“In reality, it creates a ‘right to discriminate’ against LGBTQ people,” Molloy tweeted.
(The Washington Blade is preparing a detailed chart on the differences between the Equality Act and the Fairness for All Act, as well as the situation with current law after the U.S. Supreme Court’s decision last year in Bostock v. Clayton County, which found anti-LGBTQ discrimination is an illegal form of sex discrimination under Title VII of the Civil Rights Act of 1964, therefore not only illegal in employment, but under all laws that ban sex discrimination.)
Despite complaints the legislation may not go far enough, the Fairness for All Act – if LGBTQ rights supporters are serious about getting a bill to President Biden’s desk — may be a necessary tool to win sufficient support, or at least incorporating aspects of the legislation into the Equality Act.
Each of three Republicans who co-sponsored the Equality Act in the previous Congress — Reps. John Katko (R-N.Y.) and Brian Fitzpatrick (R-Pa.), and Resident Commissioner Jenniffer González (R-Puerto Rico) — are no longer on the bill. A Republican lobbyist said the two voting members, Katko and Fitzpatrick, would likely vote for the Equality Act when it comes to the floor consistent with their previous votes of support, but the lack of Republican co-sponsors doesn’t bode well for bipartisan support.
That would likely derail the Equality Act in the Senate, where 10 Republican votes would be needed to end a filibuster on the legislation. Sen. Susan Collins (R-Maine) has similarly said she won’t co-sponsor the legislation after having done so in the previous Congress.
Tony Perkins, president of the anti-LGBTQ Family Research Council, crowed in a statement against the Equality Act, which he called “a grave and treasonous threat to our nation’s core values” over the lack of Republican support.
“The fact that no Republicans have co-sponsored it, even those who co-sponsored in the previous Congress, underscores the Democrats’ lurch to the left,” Perkins said. “This is a radical bill that uses the government to control, through coercion, how every American thinks, speaks and acts on issues of human sexuality.”
One Democratic insider said some key LGBTQ leaders are disappointed with the Human Rights Campaign for turning its back, or in some cases openly campaigning against, Republican allies who had sponsored or voted for the Equality Act, including one advocate who called the decision “complete malpractice for our community — they still operate as LGBTQ rights being a partisan issue.”
Lucas Acosta, a spokesperson for the Human Rights Campaign, said the job of the organization “is to remind legislators where their voters stand about real people across our country who continue to have second-class protections.”
“More than two-thirds of Americans support the Equality Act, including a majority of Republicans and an overwhelming majority of young Americans, the future of our nation,” Acosta added. “The Equality Act isn’t beltway politics, it’s about ensuring that LGBTQ children can grow up in a society that values them and affords them the protections they deserve.”
To be sure, LGBTQ rights advocates are also criticizing Republicans for not co-sponsoring the Equality Act as they have in the previous Congress.
Sean Meloy, chair of the PA Dems LGBTQ Caucus, took Fitzpatrick to task for not co-sponsoring the Equality Act as he did in the previous Congress.
“It is unfortunate some who were willing to co-sponsor the Equality Act in 2019 decided not to in 2021,” Meloy said. “It has enabled anti-LGBTQ activists to make the false claim that the legislation is not bipartisan at a time when bipartisanship is critical to its passage in the U.S. Senate.”
No Senate version of the Fairness for All Act is planned for imminent introduction. But such legislation may be the vehicle to win over Sen. Mitt Romney (R-Utah), who signaled he won’t the support the Equality Act over religious liberty concerns, and Collins, who won’t co-sponsor the Equality Act as she did in the previous Congress. Romney has signaled an openness to the Fairness for All Act in recent years.
Annie Clark, a Collins spokesperson, said introducing a new bill is on the Maine Republican’s possible list of options to advance LGBTQ issues.
“Sen. 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,” Clark said.