The foundational (but largely ignored) problem with the Equality Act

Cardinal Timothy Dolan recently published an opinion piece in Public Discourse about the Equality Act, legislation passed by the House of Representatives on February 25, the topic of a Senate Judiciary hearing on March 17, and now waiting upon a full vote in the Senate.

The focus of the Equality Act is adding two categories to that of “sex” accorded legal protection against discrimination: “sexual orientation” and “gender identity.” It also, as Cardinal Dolan emphasizes in his piece, explicitly renders religious and conscience protections in this area null by denying any application of the Religious Freedom Restoration Act to claims. Supporters of the Equality Act attempt to obfuscate on this score, but the language of the bill is clear:

The Religious Freedom Restoration Act of 1993 (42 U.S.C. 2000bb et seq.) shall not provide a claim concerning, or a defense to a claim under, a covered title, or provide a basis for challenging the application or enforcement of a covered title.

It is not surprising that Cardinal Dolan and other Catholic prelates choose to focus on the religious freedom aspect of the Equality Act. It would have a direct impact on all religious institutions, and it is a broadly appealing approach.

It’s unfortunate, though, that the Cardinal doesn’t give equal attention to the more foundational problem with the Equality Act: including “gender identity” as a legally protected category is unscientific, illogical and ultimately; it is deeply damaging to the cause of simple reality and then, more specifically, to women.

Sex is, indeed, binary. It is verifiable and observable. One doesn’t have to read Genesis to understand this. It would be refreshing if we could hear forthright language to this effect from Church leaders, as forthright as say, the words Cardinal Dolan used in a 2018 interview about family separation at the southern border:

If they want to take a baby from the arms of his mother and separate the two, that’s wrong. I don’t care where you’re at, what time and condition, that just goes against – you don’t have to read the Bible for that. That goes against human decency. That goes against human dignity.

Throughout history, women have been treated in specific ways, not because they “felt like a woman,” but because they were women. They were adult human females, born as female infants, grown through a female childhood.

The way of a female through a society and a culture varies, but no matter if she was constrained in the type of clothing she was allowed to wear, compelled to marry, prohibited from going to school, refused property rights or a vote, or, to go to a yet darker place, stalked, abused and raped – all of that happens in a woman’s life, and to women globally – because they are female.

In the United States specifically, women have spent decades – centuries – working and fighting for the right to own property and conduct business, to vote, to enter professions, to be paid fairly for their labor, and to have their voices and experiences heard in legal proceedings. They were not barred or restricted from any of these activities because they “felt” like a woman or because they had certain mannerisms. They were barred and restricted – because of their sex. They were women.

Sex is real. To be a female is a real, embodied experience. It’s not a “belief.” It’s a reality.

Gender identity, on the other hand, is a belief. “Gender” is generally understood as a form of expression. It is changeable, malleable, and subjective. It can be assumed and performative.

Moreover – and this is a point which is essential to understand – as currently understood in the United States and assumed by this legislation, “gender identity” is dependent on one factor, and one factor only: an individual’s self-assessment.

Many don’t understand this. They assume that if a man gets to declare himself a woman, that declaration has been preceded by psychological and medical care and assessment and perhaps even a legal process.

Well, no. That’s not the current situation in the United States, and that is not is assumed in the Equality Act.

It’s called “self-ID.” Which is to say – it is your right to define yourself as anything you wish – for a day, for a week, forever, or just in this moment.

Let me say this again: there is no formal framework for determining “gender identity” in the Equality Act.

What does this mean?

As individuals and organizations have been documenting across the globe, enshrining gender self-identity as a social assumption and a right wreaks havoc and casts uncertainty on to many areas of life that require exactness for their effectiveness, ranging from crime statistics to medical treatment.

It also means open season on women and girls.

This isn’t about declaring that individuals who experience gender dysphoria are wicked people determined to hurt women and girls. It’s about, among other things, acknowledging reality. Not only biological reality, but the reality that human beings are not angels.

We acknowledge the great, elaborate lengths that frankly crazy and perverted people will go through to act out their impulses and gain access to the vulnerable in churches, youth organizations, and education. In a culture awash in destructive, dehumanizing pornography, barriers and mutual care collapsed (or suspect), it is not unreasonable to acknowledge that men who want to harm women and girls or, for whatever reason their disturbed psyches are dictating, want to enter into women’s spaces, will use gender self-identity to do so.

Sex is binary. A woman is an adult human female. Many aspects of life call for sexually integrated spaces — but not all. Women deserve their own spaces when they are escaping from abuse, when they are imprisoned, when they are under medical care, when they are tending to personal physical needs, and if they desire, when they are educated, just to name a few.

Women deserve to be safe in those spaces, and the Equality Act, as written, would open up those spaces to the presence of men – the worst men, who for whatever reason, cannot or will not leave vulnerable women alone, or who are sexually aroused by pretending to be women in women’s spaces.

Cardinal Dolan and other Catholic leaders should understand this dynamic better than anyone. As leaders of an institution that has, at local, national and international levels been dealing with the issue of sexual abuse for decades, this should be understood, communicated, and emphasized. Catholic chanceries and archives are bursting with files describing the activities, crimes and sins of individuals who, shall we say, self-identified as pious, caring and faithful, with great success.

Lessons learned? Here’s the opportunity to show if that’s true.