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

• Published date: 01 October 2020
• Author: Callie H. Burt
• DOI: 10.1177/1557085120918667
• Date: 01 October 2020
• Subject Matter: Articles

918667FCXXXX10.1177/1557085120918667Feminist CriminologyBurt
research-article2020
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Feminist Criminology
2020, Vol. 15(4) 363 –409
Scrutinizing the U.S. Equality
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Examination of Definitional
Changes and Sociolegal
Ramifications
Callie H. Burt1
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.
Keywords
feminism, sex and gender, transgender, LGBTQ, Equality Act, women’s rights
Since the turn of the century in the United States, we have observed the extension of
socio-legal rights and protections to lesbian, gay, and bisexual (LGB) individuals,
from decriminalizing same-sex sexual behavior in Lawrence v. Texas (539 U.S. 558,
1Georgia State University, Atlanta, USA
Corresponding Author:
Callie H. Burt, Department of Criminal Justice & Criminology and Center for Research on Interpersonal
Violence, Georgia State University, P.O. Box 3992, Atlanta, GA 30302, USA.
Email: cburt@gsu.edu

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Feminist Criminology 15(4)
2003) to the federal recognition of the constitutional right to same-sex marriage in
Obergefell v. Hodges (567 U.S.__2015). More broadly, after centuries of individual
resistance and decades of organized activism, in the span of a mere decade, social
attitudes around homosexuality have drastically shifted in the direction of increasing
tolerance, if not acceptance (e.g., Walters, 2014). Although ongoing battles remain,
LGB individuals and couples have achieved a degree of social acceptance hardly
imaginable only a few decades ago.
In the wake of marriage equality and the increasing social acceptance of nonhet-
erosexuality, transgender or trans1 rights issues have moved to the forefront.

Well-funded activist Lesbian, Gay, Bisexual, Transgender, and Queer (LGBTQ)+
organizations previously focused primarily on sexual orientation and consolidated
around marriage equality (i.e., Human Rights Campaign [HRC], GLAAD, Stonewall)
are now prioritizing trans rights. Evidence suggests that prominent LGBT activist
organizations have shifted from a long-entrenched primary emphasis on sexuality/
LGB issues to a predominant focus on trans issues. At present, at least in the United
States and United Kingdom, LGBT lobbying and organized activism center the T
over the LGB (Biggs, n.d.).2
Consequently, recent years have seen the trans rights movement gain remarkable,
even unprecedented, momentum. Mara Keisling (2016) of the National Center for
Transgender Equality averred that trans activism has made “faster progress than any
movement in American history,” and Taylor et al. (2018) noted that “progress on trans
rights has been stunning . . . rapid and dramatic.” This movement’s success is due in
large part to the successful lobbying efforts of these LGBT organizations, which,
leveraging their existing reputations as progressive groups acting on behalf of a well-
defined and marginalized demographic, have fostered a view of the trans rights move-
ment as the latest frontier in the expansion of human rights and a natural extension of
LGB rights. In the United States, the Equality Act of 2019 (H.R. 5) is a recent instan-
tiation of these efforts. The Equality Act is a prominent piece of democratic legislation
(with 240 co-sponsors, 237 of whom are Democrats3), which amends the Civil Rights
Act of 1964 and other core civil rights statutes to explicitly prohibit discrimination on
the basis of sexual orientation and gender identity (like age, race, color, and sex). In
addition, the bill widens coverage by “[expanding] the definition of public accommo-
dations to include places or establishments that provide (1) exhibitions, recreation,
exercise, amusement, gatherings, or displays; (2) goods, services, or programs; and (3)
transportation services” (CRS, 2019). In 2019, House Majority Leader Nancy Pelosi
proclaimed the Equality Act to be a centerpiece of the Democratic party’s legislative
agenda leading up to the 2020 elections.
Like many political issues at present, public debates around the Equality Act usu-
ally fall on left–right party lines with little debate on substance, including the gender
identity theory implicitly endorsed by the bill. The Congressional discussion of the bill
consisted of Democratic lawmakers lauding the bill (e.g., as “literally a life-saving
bill”) with Republican representatives panning “the deep flaws” in the legislation
(H.R. 5 Text, 2019). Much of the public seem largely content to adopt party-line posi-
tions without discussion or critical scrutiny. This lack of public discussion is

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Burt
365
objectionable in a democratic society, in general, but it is even more problematic in
this case given the pronounced shift in American jurisprudence the Equality Act will
institute from sex-based to gender identity-based protections. Many on the left sup-
porting the bill appear unaware of the sweeping nature of this legislation and unin-
formed about the practical details.
Although laudable in its nondiscriminatory aims, the form of H.R.5 is problematic.
The Equality Act extends federal nondiscrimination protections to LGBT people not
by creating new protected classes or by protecting sexuality or gender expression
under existing sex-stereotype protections but rather by expanding the definition of sex
to “include sexual orientation and gender identity.” Departing from our creditable
legal tradition of definitional precision, the Equality Act is terminologically imprecise,
as it conflates distinct terms (i.e., sex, gender, and sexual orientation), defines gender
identity vaguely and circularly, and fails to define gender at all. More concerning,
however, is the bill’s prioritization of gender identity over biological sex. The Equality
Act defines gender identity as something that exists to be protected “regardless of sex”
without exception, thereby giving primacy to gender identity over sex when they clash
(i.e., in determining eligibility for [otherwise or previously] sex-based provisions).
The result is the erosion of females’ sex-based provisions, which include sex-sepa-
rated spaces (e.g., prisons, locker rooms, shelters), opportunities and competitions
(e.g., awards, scholarships, sports), and events (e.g., meetings, groups, festivals) (see
Lawford-Smith, 2019c, for a discussion and justification). As I will discuss, female
sex-based provisions remain important given both women’s historical disadvantages
and different reproductive biology.4
For these reasons, while I support the Equality Act’s nondiscrimination aims, I
submit that the bill, in current form, fails to strike a balance between the rights, needs,
and interests of two marginalized (and overlapping) groups—trans people and
females—and instead prioritizes the demands of trans people over the hard-won rights
of female people. This imbalance led Rep. Lesko (2019) to argue that the bill should
be called “The Forfeiting Women’s Rights Act.” In current form, the Equality Act’s
elision of the distinction between biological sex and gender self-identification, with
the prioritization of the latter over the former, amounts to an impracticable attempt to
provide sex-based protections with sex-blind policies. Because, as I will discuss, gen-
der identity is vaguely and circularly defined without the requirement for any verifica-
tion or formal status change, any person can access opposite-sex provisions merely on
the basis of first-person testimony through gender self-ID (e.g., “I identify as a
woman”), no medical or legal gatekeeping or even presentation style (e.g., as femi-
nine) required.5 Therefore, and unbeknownst to many, the Equality Act eliminates the
right to sex-based provisions.
As a result of its prioritization of gender identity “regardless of sex” and the fact
that as defined gender identity is subjective, malleable, and unobservable, and, there-
fore, unverifiable, the Equality Act would allow any male at any time to claim access
to female-only spaces or provisions on the basis of a gender identity claim.6 The act
would extend male right-of-access to female provisions both to transwomen and to
predatory or opportunist males, and because gender identity is unobservable, there is

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