Equality Act: What Churches Must Know

Written by Jordan Craig on May 06, 2021 in Laws and Taxes

On February 25th, 2021, the Equality Act passed through the House of Representatives with a 224-206 vote. One week later, it made its way to the Senate where it currently sits. If passed through the Senate, this bill could have implications that would affect churches and religious organizations. In today’s blog, we will be exploring the details of this act and what it could mean for churches and ministries.

What is the Equality Act?

What the Equality Act sets out to do is to include sexual orientation and gender identity in the list of protected characteristics that already exists under federal law. The bill defines gender identity as such, “The term ‘gender identity’ means the gender-related identity, appearance, mannerisms, or other gender-related characteristics of an individual, regardless of the individual’s designated sex at birth” (H.R. 5 Sect. 1106). It also defines sexual orientation: “The term ‘sex’ includes— (A) a sex stereotype; (B) pregnancy, childbirth, or a related medical condition; (C) sexual orientation or gender identity; and (D) sex characteristics, including intersex traits” (H.R. 5 Sect. 1106).

Federal law does not currently provide discrimination protections for these groups of people as it relates to areas such as housing, credit, and jury selection. This bill would add protections in these areas. Also, the bill sets out to redefine these terms in the Civil Rights Act of 1964. This would add protections as it relates to the areas of public accommodations, public facilities, public education, federal funding, and employment.

The redefining of these terms and the potential inclusion of protections for LGBTQ+ people has raised great concern among many Christians and Christian organizations. There is fear that the provisions that this bill sets forth could jeopardize one’s religious convictions and force religious organizations to hire or marry LBGTQ+ people. In order to address this concern, it is best to turn directly to the bill itself.

KEY DATES
  1. June 15th, 2020 - Bostock vs. Clayton County
  2. February 17th - introduced to House
  3. February 25th - House passes Equality Act
  4. March 1st - introduced to Senate

How does the Equality Act affect churches?

While the redefinitions posed in this bill may oppose some Christians’ deeply held religious convictions, most of the bill actually has no implications for churches. It is important to note that churches are not a “public accommodation” in the Civil Rights Act due to the separation of church and state. Thus, that part of the bill will not impact churches. However, there is one provision that is worth looking into more closely. That provision is Section 1107 and the impact this bill has on the Religious Freedom Restoration Act of 1993. In Section 1107 of the Equality Act, it states the following:

“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” (H.R. 5 Sect. 1107).

This means that any defense that cites RFRA in relation to LGBTQ+ people will now be null and void. On its surface, the RFRA appears to provide protection that is necessary for churches and religious organizations. The reality, though, is that protections for churches are already built into the free exercise clause of the first amendment. The RFRA merely reinforced those protections that already existed. The first amendment protections for churches will remain even if the Equality Act does get passed.

For example, say First Church of America has a scenario where a staff member comes out as transsexual. After discussion as a board of directors, the church decides to terminate this individual’s employment on the basis that the individual’s lifestyle is contrary to their deeply held religious convictions. Suppose the church has clear language about their views on sexuality and gender identity written into their bylaws and/or written doctrines. In that case, the Equality Act will not provide a basis to sue the church.

However, consider if this scenario were to happen at a for-profit religious company. Even if a for-profit business has clear language in its bylaws, the terminated employee would likely have a case against the for-profit company.

With that said, it is unlikely that churches will be affected by the Equality Act, especially if they have precise definitions in their governing documents. Religious schools are often given the same protections as churches. However, the protections steadily diminish the further an organization gets away from being a church. Religious non-profits could very well be impacted, with religious for-profits being the most likely to feel the impact of the Equality Act.

What do I need to do?

The law always requires interpretation, and it is hard to say definitively what will happen in any given court case. If a church or religious organization is trying to protect itself from the potential effects of the Equality Act, the best action to take is to clearly state how they define sexual orientation, gender identity, and marriage in their bylaws and/or written doctrines. These documents govern an organization, and any applicable religious exemption will require clear definitions in these foundational documents. In addition, religious organizations should have an employee handbook that clearly expresses their statement of faith as it relates to these definitions. Employees of the organization should sign an acknowledgement of the handbook, and a record of this signed acknowledgement should be kept by the organization.

Nevertheless, the Equality Act currently sits in the hands of the Senate. It needs a filibuster-proof 60 votes to pass. It seems unlikely that it will pass through the Senate in its current version; however, it is reasonable to think that if it doesn’t get enough votes in the Senate, the House could write a new version with a better chance of passage. President Joe Biden is a proponent of the Equality Act, and it would likely pass if it gets to his desk. In the meantime, churches and ministry leaders will be waiting to see if the Biden administration can sign this bill into law.

If you’d like to update your governing documents, reach out to the StartCHURCH team at 877-494-4655, and we will help you make any necessary updates to provide the most protection possible.

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RESOURCES

  1. https://www.congress.gov/bill/117th-congress/house-bill/5/text

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Blessings,
Raul Rivera


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