For the first time, the Equality Act, the federal legislation prohibiting discrimination on the basis of sex, gender identity, and sexual orientation, will get a hearing in the Senate, when the Judiciary Committee takes up the bill on Wednesday. The Equality Act has already passed the House, though—as with much progressive legislation—the Senate is less likely to follow its lead, and passage will come down to the mere handful of votes from Democrats who oppose the bill and Republicans who support it. (Another issue that could be resolved by ending the filibuster.)
The hearing on Wednesday may or may not offer a preview of what will happen in a full Senate vote, but it will certainly provide an opportunity for Equality Act opponents on the Senate Judiciary Committee to deliver a torrent of anti-LGBTQ content to feed the right-wing media ouroboros, all of which will be repeated by media outlets across the political spectrum. Such governance as spectacle, to some, may look like another sad attempt to shore up a post-Trump conservative base. Yet whether or not it succeeds in that task, this hearing will provide ample evidence that the tenuous civil rights and political power that have been won by LGBTQ people are still up for debate.
Keeping that debate going is largely the Republican strategy. They are merely recasting its sides. While gay adults in marriages or the military may carry less fearmongering potential than they once did, a moral panic about children being gay or bi or trans is more reliable. That will be Republicans’ core message, and it will sound like vaguely recalled, cruelly phrased claims about genitals, hormones, and chromosomes, along with freshly uttered appeals to protect “women and girls” and “free speech.” At least one writer with no background in LGBTQ rights and who has blamed “cancel culture” for the criticism her anti-trans book received will offer her testimony.
All this rhetoric is not worth dismantling. Journalists, researchers, authors, activists, and lawyers with subject matter expertise, and whom Congress should look to—experts who are trans and nonbinary—have already done so and have been working to address and dismiss such myths and specious claims for a long time. But neither is it sufficient, particularly for Equality Act supporters, to wave the Republicans’ strategy off as just culture-war stuff. “I’ve always thought ‘culture wars’ is an alibi, a drag name for economic interests that don’t register on the Nasdaq,” as Dartmouth history professor Bethany Moreton told Katelyn Burns for The New Republic.
There is always something more going on in a culture-war frame-up than manufacturing scapegoats from the already stigmatized. “They” don’t hate people for being queer or trans, in other words, nor are they “using” gender and sexuality merely as a front for some other more important political agenda. This is the agenda: to use discrimination to maintain a social order in which only people who seem straight and cis have the right to exist in public and survive—in schools, in front of landlords, in health care settings. It’s something that has easily been lost in the love is love kind of rhetoric that anchored the fight for marriage equality. We are fighting over power.
The Equality Act, like all civil rights legislation, faces opposition from people who claim it will take something away from them. What the law would do is clarify that the Civil Rights Act of 1964 protects LGBTQ people, too: “This Act makes explicit that existing Federal statutes prohibiting sex discrimination in employment (including in access to benefits), health care, housing, education, credit, and jury service also prohibit sexual orientation and gender identity discrimination.” Discrimination against someone for being gay or bisexual or trans, for example, is necessarily discrimination “on the basis of sex,” as Title VII of the Civil Rights Act phrases it. This is the conclusion the Supreme Court came to in its 2020 decision in Bostock v. Clayton County, a set of employment discrimination cases involving gay men and a trans woman. The Equality Act would state that clearly in the law itself. It is significant in how broad it is, compared to marriage equality, for example, as it applies to so much more of how we live and work. A law can’t end discrimination, but it does describe and reinforce what rights and power LGBTQ people hold.
Opposition to the Equality Act is an opportunity for the right to consolidate its power. In February, a coalition including the Family Policy Alliance, the Heritage Foundation, and the Alliance Defending Freedom launched a set of guiding principles called The Promise to America’s Children, landing just before the House voted on the Equality Act, and while a slate of anti-trans bills were moving through state legislatures. As Heron Greenesmith, senior research analyst at Political Research Associates, explained after an Ohio state legislator unwittingly leaked the campaign, The Promise “describes a childhood in which a narrow Christian-Right worldview governs, and parents are encouraged to ‘protect’ their children from anything that doesn’t fit into that worldview.” It braids together a number of causes: criminalizing abortion, banning trans health care and comprehensive sex education, protecting conversion therapy and maintaining legal discrimination against LGBTQ people. As usual, the right sees the connections in these fights more clearly than some on the left.
While it is absolutely true that trans kids are being used as a wedge issue, meant to recruit opposition to the Equality Act, such groups are also weaponizing concerns over harm to trans kids. The Equality Act “would backfire, hurting many of the individuals it aims to help, namely children and youth suffering from gender dysphoria” is an actual Heritage Foundation talking point. (It is also untrue.) It was one thing when Heritage and its allies were claiming to “save women’s sports” by barring trans youth from playing them. This rhetoric of purported “harm” is a kind of evolution, with the same core: We know what’s best for you, which is the same thing as saying, We will control you. They are not wrong: Lives are on the line. The harms in such debates are more immediate than who holds onto a Senate seat and more material than bizarre fantasies about trans athletes. But they want the debate to overshadow the reality: Two-thirds of all LGBTQ adults in the United States report facing some form of discrimination. Republicans and other Equality Act opponents would prefer to legislate based on their own symbolic victimhood. That and conspiracy theories about children’s toys is all they are bringing to this fight.
Flimsy as that seems, to defeat such anti-LGBTQ rights tactics will take more than naming and recognizing the discrimination the law is meant to address. Even the law will not be enough to address that discrimination. The struggle here, inside Congress and out, is about what the right knows it is actually losing: the power to control people’s lives through institutionalized bias, stigma, and violence. When the stakes are so clearly stated, it’s obvious why it won’t give that up without a fight.
