Representative Stewart Responds to Critics of Fairness for All
United States House of Representatives
Washington, DC 20515
The Honorable Kevin McCarthy
The Honorable Steve Scalise
Re: The Fairness for All Act of 2019 (“FFA”)
Dear Minority Leader McCarthy and Minority Whip Scalise:
The perpetual conflicts between LGBT rights and religious freedom are corrosive and unsustainable. Both LGBT rights and religious freedom deserve real protection. The current right-versus-left, no-compromise, winner-take-all approaches are a recipe for disaster—especially for religious freedom. In the attached letter, some of the nation’s most prominent religious liberty scholars warn that reasonable compromises have to be made before it’s too late. “The culture war over LGBT rights has gone far to brand legitimate religious liberty concerns as merely a front for bigotry; perpetuating that war can only perpetuate the misbranding,” they write. Predicting this very moment, they note that “[a]ny search for common ground is likely to yield legislation that will be criticized for not being ideologically pure or for not delivering perfect results.” But they nevertheless “strongly endorse the general approach” of compromise legislation.
The Fairness for All Act of 2019 (FFA) is such compromise legislation. FFA is the product of years of negotiations between conservative religious groups and fairness-minded LGBT rights groups. It creates federal protections against discrimination for LGBT people in areas like employment, housing, public accommodations, federally funded programs, jury service, and access to credit. But it also provides strong new protections for religious individuals and institutions.
Pure religious freedom bills, such as the First Amendment Defense Act, fail to address legitimate LGBT concerns and have zero chance of success. The Equality Act advances LGBT rights in a way that gravely threatens religious freedom. There’s a better way.
FFA protects the tax-exempt status of religious organizations with traditional beliefs about marriage and sexuality. It provides broad rights for churches and other faith communities to uphold their religious standards in their employment, non-profit housing, sacred religious properties, religious schools, and federally funded programs. FFA has key protections for religious employment, religious properties, and religious schools that would even preempt contrary state laws. FFA saves religious adoption and foster care, which is under relentless attack across the nation, through a creative new approach that borrows from decades of experience with charitable-choice programs. FFA requires secular employers in all 50 states to respect and accommodate the religious needs of their employees, such as for Sabbath worship, and ensures they won’t be discriminated against for expressing their religious views about marriage inside or outside the workplace. And perhaps most importantly, FFA preserves the Religious Freedom Restoration Act (RFRA), which the Equality Act would gut. RFRA provides powerful religious freedom defenses for any religious individual or group that might need additional protection.
You recently received a letter criticizing FFA from groups that have long opposed any anti-discrimination protections for LGBT individuals. Their letter is inaccurate, misleading, and alarmist. Here are a few examples:
- Only religious organizations are protected. FFA protects religious employees, students seeking education at a faith-affirming college, nearly all wedding vendors, and religious couples seeking to adopt or foster through faith-based agencies. And it preserves RFRA’s powerful protections for individual religious liberty.
- Doctors and hospitals will be forced to provide transgender transitioning services. The FFA bill does not require doctors or hospitals to provide any particular medical treatment or services. Rather, it requires only that if a doctor or hospital choose to provide a particular medical treatment or service, a doctor or hospital cannot deny that medical treatment or service simply because a person is transgender. Additionally, for the first time, doctors and nurses would also be protected at hospitals that already provide such services. The letter’s reference to transgender procedures in child custody disputes is grossly misleading—FFA has no effect on those state-law matters.
- Federally funded foster agencies and parents must “affirm transgender ideology.” State and private agencies cannot subject transgender foster kids to harmful conversion therapy or simply deny their gender dysphoria, but nothing in FFA requires “affirmation” of any ideology much less transgender medical treatments. Their letter essentially supports conversion therapy, an increasingly discredited practice.
- Federally funded homeless shelters for abused women must admit biological men. FFA allows a federally subsidized program to separate males and females if doing so is “necessary to the essential operation” of the program. If properly protecting and treating abused women requires separate facilities for transgender women, FFA allows it.
- Girls and women’s sports will be destroyed. False FFA preserves the ability of federally funded education programs to maintain separate teams based on sex and to protect the fairness of competition by establishing reasonable requirements for participation on female teams.
- Female privacy in restrooms will be destroyed. 60%+ of Americans already live in a jurisdiction allowing people to use bathrooms, locker rooms, homeless shelters, and other sex-separated spaces based on their gender identity. The only solution to the tensions this sometimes creates is more privacy for all people. FFA mandates that employers, restaurants, gyms, homeless shelters, and schools across the nation provide greater privacy for everyone. Finally, any inappropriate activity in these spaces is already a crime.
- Religious schools would have to host same-sex weddings. The exemptions for religious schools and colleges are very broad. Not only are they exempt from regulation as public accommodations but FFA preempts state laws that already make them public accommodations. Numerous religious colleges around the country support FFA.
I could go on, but these examples suffice to make my point.
The advocates who wrote the letter opposing FFA are sincere in their desire to defend religious freedom. But they have no viable alternative to the Equality Act. They have no realistic plan. Reliance on recent regulations that protect religious freedom is not a lasting solution. As the religious liberty scholars warn, we can and must find reasonable legislative compromises that protect both LGBT persons and religious freedom before it is too late. That is precisely what the Fairness for All Act of 2019 accomplishes. I urge you to support it.