Scrutinizing the U.S. Equality Act 2019: A Feminist Examination of Definitional Changes and Sociolegal Ramifications

Abstract

The U.S. Equality Act, which amends civil rights statutes to explicitly prohibit discrimination on the basis of sexual orientation and gender identity, passed the House in May 2019 with unanimous Democratic support. Adopting a feminist perspective, I scrutinize the act from a largely neglected position, one that supports both LGBTQ and sex-based rights. Although laudable in its aims, the Equality Act is objectionable in form. The Act extends non-discrimination protections to LGBTQ individuals not by creating new protected classes but by redefining sex to include gender identity and sexual orientation, which is not only terminologically imprecise but also creates a clash between sex-based and gender identity-based rights. By defining gender identity as something that exists to be protected “regardless of sex,” the act undermines sex-based provisions, replacing them with provisions based on gender self-identification. Recognizing confusion over terminology, I describe key terms (sex, gender, gender identity, and sexual orientation) and consider various usages. I conclude by discussing ways the bill might be modified so as to protect LGBTQ people without undermining women’s (sex-based) rights.