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Dear Congressman Frank March 24, 2021 The Honorable Richard J. Durbin, Chair The Honorable Chuck Grassley, Ranking Member Members of the Committee on the Judiciary United States Senate Re: The Equality Act, S. 393 Dear Chairman Durbin, Ranking Member Grassley, and Members of the Committee: We write on behalf of Lambda Legal Defense and Education Fund, Inc. (“Lambda Legal”) in support of S. 393, the Equality Act, which will provide clear, comprehensive, and nationwide protections against discrimination based on sexual orientation or gender identity that are long overdue and critically important for the approximately 13 million Americans age 13 and older who identify as lesbian, gay, bisexual, or transgender (“LGBT”).1 Founded in 1973, Lambda Legal is the nation’s oldest and largest legal organization dedicated to achieving full recognition of the civil rights of LGBTQ people through impact litigation, policy development and advocacy, and public education. We were counsel in Lawrence v. Texas, 539 U.S. 558 (2003), co-counsel in Romer v. Evans, 517 U.S. 620 (1996), and co-counsel in Obergefell v. Hodges, 576 U.S. __, 135 S. Ct. 2017 (2015), three of the most important cases decided by the U.S. Supreme Court addressing sexual orientation and the law. I. Introduction It is difficult to overstate the importance of establishing clear, explicit protections against the widespread discrimination LGBTQ people still face throughout their daily lives and in all corners of the United States. By passing the Equality Act, Congress finally will provide both comprehensive protections and effective remedies for anti-LGBTQ discrimination in employment, housing, education, healthcare services, access to credit, jury service, public accommodations and federally funded programs and services. By doing so, Congress also will make a powerful statement of principle regarding the equal place LGBTQ people of all backgrounds deserve within our American family. The Equality Act is drafted to codify the U.S. Supreme Court’s decision last June in Bostock v. Clayton County, Georgia, 590 U.S. ___, 140 S. Ct. 1731 (2020), as well as the many federal court decisions and decisions of the EEOC which preceded Bostock and definitively recognized that the existing sex discrimination prohibitions in federal law, when properly understood, necessarily forbid discrimination based on sexual orientation or gender identity 1 Kerith J. Conron & Shoshana K. Goldberg, Williams Inst., LGBT People in the US Not Protected by State Non-Discrimination Statutes (2020), https://williamsinstitute.law.ucla.edu/publications/lgbt- nondiscrimination-statutes/. WASHINGTON D.C. OFFICE 1776 K STREET, N.W. 7TH FLOOR, WASHINGTON, DC 20006 T 202-804-6245 LAMBDALEGAL.ORG The Honorable Richard J. Durbin The Honorable Chuck Grassley Members of the Senate Committee on the Judiciary March 24, 2021, Page 2 as forms of sex discrimination. The Act also updates the existing federal civil rights laws by adding “sex” to the nondiscrimination provisions governing public accommodations and federally funded programs and services, and by expanding the scope of the public accommodations law to more appropriately reflect the entities in our modern society that offer goods or services to the general public to which all of us should have equal, nondiscriminatory access. This testimony presents data collected by Lambda Legal’s Help Desk, which confirms the urgent need for the Equality Act because anti-LGBTQ discrimination in the areas addressed by the Act remains pervasive and often is devasting. On an ongoing basis, we receive calls for help from every corner of the country showing that this discrimination is rampant in both the private sector and by state and local government. Earlier this month, we released a report entitled The United States of Discrimination: Trends in Bias Against LGBTQ People and People Living with HIV, 2021. The report analyzes the 4,468 calls received during 2020, which confirm not just the nationwide scope of the problem but the wide range of bias-based problems.2 Given this persistent problem, our communities need the Senate to join with the House of Representatives to establish a clear, firm national policy against this scourge. Doing so will both send a powerful deterrent message that this abusive behavior must stop and provide explicit coverage and remedies for when that message is not heeded. II. The Opposition’s Red Herrings Before presenting Lambda Legal’s Help Desk recorded evidence of discrimination, this testimony responds to “red herring” opposition testimony given during the Committee’s March 17, 2021 hearing. Unfortunately, both Abigail Shrier and Mary Hasson amplified popular misconceptions that have been embraced by some who oppose the bill and LGBTQ equality and inclusion more generally. For example, contrary to Ms. Shrier’s testimony, inclusion of transgender people in student athletic programs has not “destroyed” girls’ and women’s sports programs in the many states with nondiscrimination laws and policies like the Equality Act. Moreover, nondiscrimination protections for transgender people have not led to increases in assaults by cisgender men pretending to be transgender so they can prey on girls and women in sex- segregated spaces such as restrooms, locker rooms, domestic violence shelters, and prisons.3 However, the lack of those protections – and the lack of strong messages insisting upon respect for and inclusion of transgender people – reinforces the social stigma that 2 Lambda Legal, The United States of Discrimination: Trends in Bias Against LGBTQ People and People Living with HIV, 2021 (March 2021), https://www.lambdalegal.org/sites/default/files/legal-ocs/downloads /ll_legalhelpdeskreport_0310-2.pdf. 3 See Sasha Buchert, The need for the Equality Act and transgender protections – debunking the scare tactics (April 1, 2019), https://www.foxnews.com/opinion/sasha-buchert-the-need-for-the-equality-act-and- transgender-protections-debunking-the-scare-tactics. The Honorable Richard J. Durbin The Honorable Chuck Grassley Members of the Senate Committee on the Judiciary March 24, 2021, Page 3 undermines the health and wellbeing of transgender people, while abetting the too-often violent abuse which, at the margins, inevitably becomes lethal.4 Similarly, contrary to Ms. Hasson’s testimony, state nondiscrimination laws and policies like the Equality Act have not created liability for clergy or houses of worship. Nor have those laws and policies driven faith-based organizations from the social services and medical services sectors. Ms. Hasson and those who share her religious belief that sex and gender are binary and defined by Biblical texts are fully protected in those beliefs. But their religious views must not be permitted to thwart public policy that recognizes the medical research-based understanding that human reality is more complex, and that transgender people do exist and must have equal human rights. These professed opposition concerns are discussed in more detail below, followed by evidence showing who truly is at risk of harm in America’s contemporary public spaces. A. Transgender Girls and Women Pose No Threat to the Opportunities, Let Alone the Safety, of Cisgender Girls and Women. We understand that Ms. Shrier’s professional training is in law, not medicine or psychology. That might explain, though not excuse, her positing as real possibilities that cisgender boys en masse are likely suddenly to announce a different gender identity and take over girls’ sports programs, or that cisgender male sexual predators are similarly likely suddenly to announce a different gender identity and thereby gain access to carceral facilities for women. This is not how individuals come to recognize their own gender dysphoria and proceed down the usually lengthy and challenging path to come out and live authentically. Detached from the established medical and mental health literature, Ms. Shrier’s testimony instead invited panic and fear of basic nondiscrimination protections with sadly familiar tropes of male sexual predators gaining access to little girls in restrooms, older girls in locker rooms, and adult women in domestic violence shelters and prisons. Asserting that equal rights for women and LGBTQ people actually will facilitate sex-based harm to them is the same tactic used to defeat the ERA, to override nondiscrimination protections in Dade Country Florida, and more recently to do the same in Houston, Texas.5 But as history has 4 Human Rights Campaign, HRC Mourns Diamond Kyree Sanders, Black Transgender Woman Killed in Cincinnati (March 13, 2021) (noting that HRC recorded 44 deaths of transgender and gender non- conforming people in 2020 alone), https://www.hrc.org/news/hrc-mourns-diamond-kyree-sanders- black-transgender-woman-killed-in-cincinnati; NYC Anti-Violence Project, Lives Lost to Fatal Anti- LGBTQ and Intimate Partner Violence in 2020, https://avp.org/in-memoriam-2020/; Human Rights Campaign, A National Crisis: Anti-Transgender Violence (2015) (discussing why transgender people of color are at ever greater risk of violence), https://www.hrc.org/resources/a-national-crisis-anti- transgender-violence. 5 Clyde Haberman, Phyllis Schlafly’s Lasting Legacy in Defeating the E.R.A., New York Times (Sept. 11, 2016), https://www.nytimes.com/2016/09/12/us/phyllis-schlaflys-lasting-legacy-in-defeating-the- era.html?searchResultPosition=7; Christopher Reed, Phyllis Schlafly obituary: American pollical activist who The Honorable Richard J. Durbin The Honorable Chuck Grassley Members
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