WDI USA Statement on the Apparent Death of the Equality Act

Brief summary of the Equality Act and Why WDI USA Opposes It

The so-called “Equality Act” would redefine the word sex to include sexual orientation and “gender identity” for all purposes under U.S. civil rights law. 

The bill defines “gender identity” to mean “the gender-related identity, appearance, mannerisms, or other gender-related characteristics of an individual, regardless of the individual’s designated sex at birth.” This vacuous and circular definition has no place in U.S. law, and is inconsistent with Article 1 of the Declaration on Women’s Sex-Based Rights: “states should maintain the centrality of the category of sex, and not ‘gender identity,’ in relation to women’s and girls’ right to be free from discrimination.”

The U.S. chapter of Women’s Declaration International (WDI USA) firmly supports legal protections for lesbians and bisexual women (as well as for gay men). However, we maintain that redefining sex to include “gender identity” would make it impossible to protect women and girls on the basis of sex and oppose the Equality Act for that reason. We also think that bill supporters should be ashamed of themselves for using a 1964 law that was intended to end the odious practice of Jim Crow racial segregation (a major civil rights victory for black Americans) to strip women and girls of human rights. 

We are very happy to report that the bill seems to be dead, at least for now. 

The Promises of President Biden and Senate Majority Leader Schumer

President Biden has been saying (at least privately) that “transgender discrimination is the ‘civil rights issue of our time’” at least since 2012. He tweeted something similar in January of 2020. 

Later that year, he vowed to get the Equality Act passed within 100 days of taking office, should he win the 2020 presidential election. Well, he won that election. Not only did he not get the Equality Act passed within 100 days; he didn’t get it passed at all. 

Senate Majority Leader Schumer has been similarly supportive of the bill (Schumer is both the Majority Leader of the Senate, making him the most powerful senator, and also a senator representing New York state).

In 2019, he co-sponsored the Senate’s version of the bill and tweeted his support for it. 

The bill passed in the House of Representatives in February of 2021 and Senate Democrats celebrated. At an event to discuss passage of the bill in the Senate that same month, Majority Leader Schumer restated his commitment to it. 

I will use my power as Majority Leader to put it on the floor and let’s see where everybody stands. Let’s see where everybody stands.

I’m hopeful that just like in the House, the Equality Act will get Republican votes and pass the Senate with bipartisan support. And of course, we now have an ally in the White House with President Biden, who’s promised to make the Equality Act a priority.

The bill was referred to the Senate Judiciary Committee in March of 2021, where it passed. And then something interesting happened: nothing.

The U.S. has a new Congress as of January 2023, and as far as we can tell, this bill is dead (for now). 

WDI USA’s Efforts to Stop It

What happened? What happened to Majority Leader Schumer’s commitment to getting the bill passed in the Senate? 

One theory is that Schumer knew that he could not get the 60 votes he would need to override a filibuster, and that is probably true. 

But we would be remiss not to mention all of the work that WDI USA did in 2021 and 2022 to explain our feminist opposition to “gender identity” to the Democrats, and to Schumer in particular. We wonder if our straightforward explanations of how the enshrinement of “gender identity” in law harms women and girls may have gotten through, and may have played some role in stopping this bill from passing. 

In November 2020, WDI (then WHRC) USA issued the Equality for All Act as an alternative to the Equality Act. Adopting the formatting of the Equality Act, this bill would, consistent with the Declaration on Women’s Sex-Based Rights, protect women and girls on the basis of sex; lesbian, gay, and bisexual people on the basis of sexual orientation; and all people on the basis of nonconformity with sex stereotypes. It would not protect anyone on the basis of “gender identity.”

On March 6, 2021, after the House passage of the Equality Act, we sent a letter to Majority Leader Schumer. That letter was signed by thousands of Declaration signatories all over the world, and stated:

Although the enactment of the Equality Act would only affect U.S. women directly, we are terrified of the impact that such enactment is likely to have globally. Our governments look to your government for leadership, expertise, and guidance. Already, we are seeing the word sex being redefined to include “gender identity” in laws throughout the U.K., the European Union, Australia, Canada, and New Zealand. These laws have had devastating impacts on the lives of women and girls, including the rapes of vulnerable women in prison, the inclusion of men in women’s spaces such as locker rooms and changing rooms, and the inclusion of men in women’s sports. This situation will only get worse if this law passes in the U.S., and similar laws are likely to extend to other geographic areas as well.

We are grateful to the coordinators of WDI globally for helping to facilitate this effort and to the thousands of women all over the world who signed the letter. Well done, WDI women.

When we say that we sent him this letter, we do not mean that we put it into the contact form of his website and sent it into the internet void. WDI USA vice president Lauren Levey is a resident of New York state. So Schumer is not only the Majority Leader of the Senate, but also one of Lauren’s senators. Because she is a constituent, she was able to get a meeting with one of his staffers. At some point in 2020, she did just that, and a group of us spoke with that staffer (a woman named Hannah). That relationship continued cordially for some time, and in March of 2021, Lauren sent the letter directly to Hannah. Hannah confirmed receipt and also said that she would be sure to share the letter with the senator. We cannot prove that she did, but it would be odd for her to make that promise and then not deliver on it. If she didn’t intend to share it with him, she could have just said, “thanks” and gotten on with her day.

On March 16, 2021, after we learned that the bill was being referred to the Senate Judiciary Committee, WDI USA president Kara Dansky submitted written testimony opposing it. In that testimony, we summarized our objections to the bill as follows: 

• The nation simply has not had the national conversation that we need to have about the far-reaching implications of redefining sex to include so-called “gender identity,” which the current version of the bill would do. We need to have that conversation before any legislation is enacted that would redefine sex to include so-called “gender identity.”
• Simply put, men aren’t women, even if they say they are, and even if they claim to “identify” as such. Women and girls need separate spaces from male people, also known as men and boys. There is no credible scientific evidence to support the proposition that a person born with a Y chromosome can be a woman. It is appalling that these things need to be said in the 21st century.
• Children are being permanently harmed at the altar of so-called “gender identity,” whether the Democrats on the Committee are willing to recognize it or not. 

We sent the testimony to every member of the committee, Democrats and Republicans, and received written confirmation that every member received it. The hearing took place the next day. 

In January of 2022, WDI USA sent a copy of president Kara Dansky’s book The Abolition of Sex: How the ‘Transgender’ Agenda Harms Women and Girls to every single member of Congress (thanks so much to the volunteer who made that happen). There is an entire section in Chapter 2 of that book about the Equality Act and how bad it is for women and girls. Is it just a coincidence that later that same month was the last time Schumer mentioned the Equality Act publicly?

Then, every month in 2022, we urged Declaration signatories to send the Equality for All Act to their senators and representatives and ask them to introduce it as an alternative to the Equality Act. Each action explained the feminist objections to redefining sex to include “gender identity.” We did this via our website and made it very easy for signatories to take action. Special thanks to our web team for making all of this happen, every month of 2022. 

President Biden has continued to trumpet his support for the Equality Act. In his 2022 State of the Union address, he said: 

For our LGBTQ+ Americans, let’s finally get the bipartisan Equality Act to my desk. The onslaught of state laws targeting transgender Americans and their families is wrong. As I said last year, especially to our younger transgender Americans, I will always have your back as your President, so you can be yourself and reach your God-given potential.

Notably, he didn’t appear to have any concern for lesbian, gay, or bisexual people, despite referencing “LGBTQ+ Americans.”

Interestingly, though, Majority Leader Schumer seems to have pivoted. As far as we can tell, the last time Schumer said a single word about the Equality Act publicly was in January of 2022, when he said at a joint meeting of the groups Freedom for All Americans, New Pride Agenda, and The NYC LGBT Center:

I am committed. I am committed to passing federal legislation to update the Civil Rights Act of 1964 to include protections for all LGBTQ+ Americans. That’s why we proudly re-introduced the Equality Act in the Senate: essential, urgent, long overdue legislation that will move us closer to a society where Americans are treated equally under law. Congress must pass the Equality Act so LGBTQ+ and queer Americans will no longer have to face discrimination in the most basic areas of life. This isn’t just something that happens once in a while if you’re LGBTQ+ — it happens far too often.

We have not been able to find a single reference to any public statement that Schumer has made about the Equality Act since then. Instead, everything seems to have shifted to marriage equality in the summer of 2022. 

The Respect for Marriage Act was introduced in the House on July 18, 2022 and passed on the very next day, with 47 House Republicans in support. It passed in the Senate on November 29, 2022, with 12 Senate Republicans in support. The 12 Republicans who voted in favor of the Respect for Marriage Act were: Roy Blunt (MO), Richard Burr (NC), Shelley Capito (WV), Susan Collins (ME), Joni Ernst (IA), Cynthia Lummis (WY), Lisa Murkowski (AK), Robert Portman (OH), Mitt Romney (UT), Dan Sullivan (AK), Thom Tillis (NC), and Todd Young (IN). Some of these Republicans (e.g., Collins and Murkowski) have made no secret of their support for same-sex marriage; others (e.g., Blunt, Burr, and Tillis) are known to be some of the staunchest conservatives in the U.S. Senate. The bill was also supported by independent senators Angus King (ME) and Bernie Sanders (VT). President Biden signed it on December 13, 2022. 

Majority Leader Schumer was able to get 12 Republican senators to vote in favor of the Respect for Marriage Act but not to vote in favor of the Equality Act. Why? Could it be that Americans are finally seeing that sexual orientation has nothing to do with so-called “gender identity?” Could it be that more and more Americans, including Republicans, are accepting the reality of same-sex attraction, with some going so far as to respect same-sex marriage?

What’s more, last summer, the Department of Education issued proposed amendments to the Title IX regulations that would redefine sex to include “gender identity” for all Title IX purposes and imposed a statutory comment deadline of September 12. By the deadline, the proposed amendments had received over 200,000 public comments, the most ever to have been received in the Department’s history. 

On September 12, a group of 19 Senate Democrats sent a letter of support to the Department. This group of Democratic senators apparently believe that it’s a good idea to redefine sex to include “gender identity” for Title IX purposes, which is not surprising in today’s political climate. What is perhaps surprising is that if 19 Senate Democrats signed that letter, that means that 31 did not. There are 50 Democratic senators in the U.S. Senate, and fewer than half of them signed that letter. We think that even a year ago, the Democrats in the Senate would have been in lock-step with each other in support of the Department’s proposed amendments. By September 2022, fewer than half of them were. It is also significant to us that the letter was submitted at the last minute, on the literal last day that the proposed amendments were open for comment. This suggests to us that the Democrats who signed the letter worked very hard to persuade more of their colleagues to sign it before the deadline and that they were unable to do so.

If 31 Senate Democrats are unwilling to publicly express support for the Education Department’s attempt to redefine sex to include “gender identity” for Title IX purposes, is it possible that some number of Senate Democrats are similarly unwilling to publicly express support for the U.S. Congress to redefine sex to include “gender identity” for civil rights purposes?

Regardless of the reason(s) for the bill’s apparent demise, we’re quite happy to see it, and we would like to think that we deserve at least some credit for bringing it to its timely end. 

Why this might be an empty victory

There are three reasons that we can think of to worry that this might be something of an empty victory.

First, the bill could be reintroduced in the new Congress at some point. We think this is unlikely. For one thing, no Republican is likely to introduce it. A Democrat could introduce it in either chamber. However, the Democrats no longer control the House, so it’s unlikely to pass in that chamber. And we have already seen that it cannot pass in the Senate, especially if Senate Democrats are starting to see the light. It’s embarrassing enough for the President and the Senate Majority Leader to have lost this fight and it would be even more embarrassing for them to walk into it again. But if the bill is resuscitated, we’ll just go back to fighting it. 

Second, beginning on the first day after taking office, President Biden spent a lot of time in 2021 issuing a series of Executive Orders, memos, and guidance documents that redefined sex to include “gender identity” throughout federal administrative law. No one knows how much harm that has done to women and girls but the point is that those orders, memos, and guidance documents have not been rescinded and until they are, they will continue to do damage. Helpfully, a federal court has blocked enforcement of the orders, memos, and guidance documents  in 20 states, and that case is currently on appeal. WDI USA submitted an amicus brief in the District Court in that case.  

Third, numerous states have in place some form of erasing women and girls either in law or policy. For example, 23 states have laws on the books that list “gender identity” as a protected category and 8 more have policies in place interpreting existing prohibitions on sex discrimination to include discrimination on the basis of “gender identity.” As far as we know, California’s non-discrimination law most closely resembles the federal Equality Act by defining sex to include “a person’s gender. ‘Gender’ means sex, and includes a person’s gender identity and gender expression. ‘Gender expression’ means a person’s gender-related appearance and behavior whether or not stereotypically associated with the person’s assigned sex at birth” (whatever any of that means). 

Of course, women and girls are not out of the woods, and we probably will not be for some time. But the apparent death of the Equality Act is an important victory. Until we are out of the woods, WDI USA plans to celebrate the victories, fight the losses, and keep going until women and girls achieve liberation.

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