[House Hearing, 116 Congress]
[From the U.S. Government Publishing Office]
THE EQUALITY ACT (H.R. 5): ENSURING
THE RIGHT TO LEARN AND WORK FREE
FROM DISCRIMINATION
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON CIVIL RIGHTS AND HUMAN SERVICES
COMMITTEE ON EDUCATION
AND LABOR
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTEENTH CONGRESS
FIRST SESSION
__________
HEARING HELD IN WASHINGTON, DC, APRIL 9, 2019
__________
Serial No. 116-16
__________
Printed for the use of the Committee on Education and Labor
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: www.govinfo.gov
or
Committee address: https://edlabor.house.gov
___________
U.S. GOVERNMENT PUBLISHING OFFICE
36-591 PDF WASHINGTON : 2019
COMMITTEE ON EDUCATION AND LABOR
ROBERT C. ``BOBBY'' SCOTT, Virginia, Chairman
Susan A. Davis, California Virginia Foxx, North Carolina,
Raul M. Grijalva, Arizona Ranking Member
Joe Courtney, Connecticut David P. Roe, Tennessee
Marcia L. Fudge, Ohio Glenn Thompson, Pennsylvania
Gregorio Kilili Camacho Sablan, Tim Walberg, Michigan
Northern Mariana Islands Brett Guthrie, Kentucky
Frederica S. Wilson, Florida Bradley Byrne, Alabama
Suzanne Bonamici, Oregon Glenn Grothman, Wisconsin
Mark Takano, California Elise M. Stefanik, New York
Alma S. Adams, North Carolina Rick W. Allen, Georgia
Mark DeSaulnier, California Francis Rooney, Florida
Donald Norcross, New Jersey Lloyd Smucker, Pennsylvania
Pramila Jayapal, Washington Jim Banks, Indiana
Joseph D. Morelle, New York Mark Walker, North Carolina
Susan Wild, Pennsylvania James Comer, Kentucky
Josh Harder, California Ben Cline, Virginia
Lucy McBath, Georgia Russ Fulcher, Idaho
Kim Schrier, Washington Van Taylor, Texas
Lauren Underwood, Illinois Steve Watkins, Kansas
Jahana Hayes, Connecticut Ron Wright, Texas
Donna E. Shalala, Florida Daniel Meuser, Pennsylvania
Andy Levin, Michigan* William R. Timmons, IV, South
Ilhan Omar, Minnesota Carolina
David J. Trone, Maryland Dusty Johnson, South Dakota
Haley M. Stevens, Michigan
Susie Lee, Nevada
Lori Trahan, Massachusetts
Joaquin Castro, Texas
* Vice-Chair
Veronique Pluviose, Staff Director
Brandon Renz, Minority Staff Director
------
SUBCOMMITTEE ON CIVIL RIGHTS AND HUMAN SERVICES
SUZANNE BONAMICI, OREGON, Chairwoman
Raul M. Grijalva, Arizona James Comer, Kentucky,
Marcia L. Fudge, Ohio Ranking Member
Kim Schrier, Washington Glenn ``GT'' Thompson,
Jahana Hayes, Connecticut Pennsylvania
David Trone, Maryland Elise M. Stefanik, New York
Susie Lee, Nevada Dusty Johnson, South Dakota
C O N T E N T S
----------
Page
Hearing held on April 9, 2019.................................... 1
Statement of Members:
Bonamici, Hon. Suzanne, Chairwoman, Subcommittee on Civil
Rights and Human Services.................................. 1
Prepared statement of.................................... 4
Comer, Hon. James, Ranking Member, Subcommittee on Civil
Rights and Human Services.................................. 5
Prepared statement of.................................... 6
Statement of Witnesses:
Gallagher Warbelow, Ms. Sarah, JD, Legal Director, Human
Rights Campaign............................................ 30
Prepared statement of.................................... 32
Hedren, Mr. Patrick, JD, Vice President of Labor, Labor,
Legal and Regulatory Policy, National Association of
Manufacturers.............................................. 13
Prepared statement of.................................... 15
Lorber, Mr. Lawrence, JD, Senior Counsel, Seyfarth Shaw LLP.. 22
Prepared statement of.................................... 24
Shappley, Ms. Kimberly, RN, Nurse, Ojeda Middle School, Del
Valle ISD, Faith Outreach Coordinator, Equality TX......... 8
Prepared statement of.................................... 10
Additional Submissions:
Chairwoman Bonamici:
Letter from the Women's Rights and Gender Justice
Organizations.......................................... 80
Letter from the Business Coalition....................... 83
Letter dated April 3, 2019............................... 157
Letter dated April 5, 2019, from the National Women's Law
Center................................................. 107
Letter dated April 8, 2019, from AAUW.................... 102
Map: Education........................................... 106
Prepared statement from the National Center for
Transgender Equality................................... 110
Letter dated April 8, 2019 from the Chamber of Commerce.. 160
Letter dated April 8, 2019 from the American Civil
Liberties Union (ACLU)................................. 161
Letter dated April 8, 2019............................... 170
Letter dated April 8, 2019 from American Atheists........ 245
Letter dated April 9, 2019 from Alaska Air Group......... 177
Letter dated April 10, 2019 from UCLA School of Law
Williams Institute..................................... 179
Letter dated April 11, 2019.............................. 183
Letter dated April 12, 2019 from HR Policy Association... 187
Letter dated April 12, 2019 from UCLA School of Law
Williams Institute..................................... 188
Letter dated April 17, 2019 from University of
Massachusetts Amherst.................................. 192
Letter dated April 17, 2019 from University of Michigan.. 195
Letter dated April 18, 2019 from UCLA School of Law
Williams Institute..................................... 197
Letter dated April 19, 2019 from American Psychological
Association............................................ 202
Letter dated April 22, 2019 from Equality California..... 206
Letter dated April 22, 2019 from Aspen Snowmass.......... 208
Letter dated April 22, 2019 from UCLA School of Law
Williams Institute..................................... 210
Letter dated April 22, 2019 from UCLA School of Law
Williams Institute..................................... 213
Letter dated April 22, 2019 from The Leadership
Conference on Civil and Human Rights................... 215
Letter dated April 22, 2019 from Lambda Legal............ 217
Letter dated April 22, 2019 from ADL..................... 242
Prepared statement from Center for American Progress..... 247
United States Court of Appeals (Case 18-2574)............ 258
Letter from the National LGBTQ Task Force................ 297
The Equality Act and Religion............................ 302
Link: Intersecting Injustice............................. 308
Link: UCLA School of Law Williams Institute.............. 308
Mr. Comer:
Letter dated March 20, 2019, from the United States
Conference of Catholic Bishops......................... 145
Letter dated April 4, 2019, from the Women's Leberation
Front, Concerned Women for America Legislative Action
Committee, Hands Across the Aisle...................... 127
Letter dated April 5, 2019, from the American Association
of Christian Schools (AACS)............................ 130
Letter dated April 8, 2019, from the Association of
Christian Schools International (ACSI)................. 132
Letter dated April 8, 2019, from the Family Policy
Alliance............................................... 135
Letter dated April 8, 2019............................... 147
Letter dated April 9, 2019............................... 121
Letter dated April 9, 2019............................... 124
Article: The Transgender War on Women.................... 153
Letter dated April 23, 2019 from the C12 Group........... 309
Mr. Hendren:
Letter dated April 5, 2019, from Salesforce.............. 313
Prepared statement from Center from General Mills........ 314
Scott, Hon. Robert C. ``Bobby'', a Representative in Congress
from the state of Virginia:
Letter from the National Women's Law Center.............. 61
Prepared statement from the Congressional Research
Service................................................ 64
Questions submitted for the record....................... 318
Trone, Hon. David J., a Representative in Congress from the
state of Maryland:
Letter dated April 9, 2019, from the National Association
of Manufacturers....................................... 96
Ms. Warbelow responses to question submitted for the record. 320
THE EQUALITY ACT (H.R. 5): ENSURING
THE RIGHT TO LEARN AND WORK FREE
FROM DISCRIMINATION
----------
Tuesday, April 9, 2019
House of Representatives
Committee on Education and Labor,
Subcommittee on Civil Rights and Human Services
Washington, DC.
----------
The subcommittees met, pursuant to notice, at 2:02 p.m., in
room 2175, Rayburn House Office Building. Hon. Suzanne Bonamici
[chairwoman of the subcommittee] presiding.
Present: Representatives Bonamici, Schrier, Hayes, Trone,
Lee, Comer, Thompson, and Johnson.
Also present: Representatives Takano, Castro, Davis, Scott,
and Foxx.
Staff present: Nekea Brown, Deputy Clerk; David Dailey,
Senior Counsel; Emma Eatman, Press Aide; Daniel Foster, Health
and Labor Counsel; Christian Haines, General Counsel Education;
Alison Hard, Professional Staff Member; Eli Hovland, Staff
Assistant; Eunice Ikene, Labor Policy Advisor; Stephanie Lalle,
Deputy Communications Director; Richard Miller, Director of
Labor Policy; Max Moore, Office Aid; Veronique Pluviose, Staff
Director; Carolyn Ronis, Civil Rights Counsel; Loredana
Valtierra, Education Policy Fellow; Banyon Vassar, Deputy
Director of Information Technology; Cyrus Artz, Minority
Parliamentarian; Marty Boughton, Minority Press Secretary;
Courtney Butcher, Minority Director of Coalitions and Members
Services; Rob Green, Minority Director of Workforce Policy; Amy
Raaf Jones, Minority Director of Education and Human Resources
Policy; John Martin, Minority Workforce Policy Counsel; Sarah
Martin, Professional Staff Member; Hannah Matesic, Minority
Legislative Operations Manager; Kelley McNabb, Minority
Communications Director; Brandon Renz, Minority Staff Director;
Alex Ricci, Minority Professional Staff Member; Ben Ridder,
Minority Legislative Assistant; Meredith Schellin, Minority
Deputy Press Secretary and Digital Advisor; and Heather Wadyka,
Minority Staff Assistant.
Chairwoman BONAMICI. The Committee on Education and Labor
will come to order. Welcome, everyone.
I note that a quorum is present, and I ask unanimous
consent that committee members, Congressman Mark Takano of
California, Congresswoman Susan Davis of California, and
Congresswoman Lori Trahan of Massachusetts, be permitted to
participate in today's hearing with the understanding that
their questions will come only after all members of the Civil
Rights and Human Services Subcommittee on both sides of the
aisle who are present have had an opportunity to question the
witnesses.
I also ask unanimous consent that Congressman David
Cicilline of Rhode Island be permitted to participate in
today's hearing with the understanding that his questions will
come only after all members of the Civil Rights and Human
Services Subcommittee, and members of the full committee on
both sides of the aisle who are present, have had an
opportunity to question the witnesses.
Without objection, so ordered.
The committee is meeting today for a legislative hearing to
hear testimony on the Equality Act, H.R. 5, ensuring the right
to learn and work free from discrimination.
Pursuant to Committee Rule 7C, opening statements are
limited to the chair and ranking member. This allows us to hear
from our witnesses sooner and provides all members with
adequate time to ask questions. And I do want to note that at
some point in the next probably half an hour we will be
breaking to vote and we will be coming back.
I recognize myself now for the purpose of making an opening
statement.
Today, we are holding a legislative hearing on H.R. 5, the
Equality Act legislation to guarantee and expand civil rights
protections for LGBTQ Americans. And I want to thank our
witnesses for being here today.
The struggle against discrimination in the United States is
as old as the country itself. For generations marginalized
people have fought and sacrificed for the inalienable rights of
life, liberty, and the pursuit of happiness to all Americans.
The Equality Act is the next chapter in this story.
From the raid on Stonewall in 1969 to the victory of
marriage equality in 2015, we have made significant progress
toward becoming a more inclusive country for the LGBTQ
population.
But we are still far from equality for all. In fact, in a
majority of States today there are no clear, comprehensive
protections for LGBTQ individuals in education, employment,
housing, health, and other everyday opportunities and services.
Instead, we rely on a patchwork of State laws that leave
millions of LGBTQ Americans uncertain about whether their
rights in humanity will be recognized in the State where they
happen to be living, working, or visiting.
In many parts of the country, an LGBTQ worker can get
married on a Saturday, post photos of their wedding to social
media on Sunday, and be fired on Monday because of who they
love. Because of who they are.
This scenario is a reality for millions of LGBTQ Americans.
In fact, 63 percent of LGBTQ people in this country have
experienced discrimination in their everyday lives.
Victims include workers, nearly half of whom have been
subjected to discrimination in the workplace. They include the
nearly one quarter of all LGBTQ Americans who forgo medical
care to avoid the discrimination in the health care system. And
they include students and parents and families of LGBTQ
individuals, like Kimberly Shappley, who will testify today
about her struggle to protect her 8-year-old transgender
daughter, Kai, from discrimination at school. And we welcome
Kai to the hearing today.
We cannot ignore stories like Kai's or pretend that they
are isolated incidents. We cannot accept the status quo in
which an individual's basic civil rights are recognized in one
State, but then potentially cease to exist when they cross
State lines. And we cannot address the widespread
discrimination affecting the LGBTQ community, especially
transgender people of color, without recognizing and protecting
their full identity. We must see people for who they are and
for all they are. We must not diminish their humanity or their
potential.
That is why we are discussing the Equality Act today. This
legislation, introduced by Representative David Cicilline and
supported by 240 bipartisan members of the House of
Representatives, is our opportunity to affirm that this
country's landmark civil rights guarantee all people the right
to be safe, secure, and free from discrimination.
The Equality Act will amend longstanding civil rights laws,
including the Civil Rights Act of 1964, to clarify the
prohibitions against discrimination on the basis of sex
includes gender identity and sexual orientation.
Specifically, the bill simply adds the words: sex,
including sexual orientation and gender identity, as a
protected characteristic. Where sex is already included as a
protected characteristic, it adds: including sexual orientation
and gender identity.
This language is to explicitly prohibit discrimination in
federally assisted programs, and it will make clear that
federally supported schools cannot discriminate against
students and employees.
And it will also make clear that LGBTQ adults and children
cannot be denied a medical checkup, counseling, therapy, or
other primary care services because of their sexual orientation
or gender identity.
Today, we may hear excuses about why Congress cannot or
should not guarantee protections for LGBTQ Americans. We may
hear claims that the Equality Act will endanger religious
freedom or put women's rights and safety at risk.
But we can look to the 20 States already providing these
explicit protections and know that such claims are unfounded.
In States like my home State of Oregon, where the Oregon
Equality Act passed in 2008 with my support as a then State
legislator, the predictions based on fear have not happened,
and in fact, women have experienced expanded rights and
protections.
We cannot let fear impede progress. The American story is
one of expanding equality for marginalized people. Today, we
are writing an important passage in its latest chapter.
I am going to recognize the ranking member, but I want to
before I do that echo Judiciary Committee Chairman Jerry
Nadler, who convened a hearing on this bill last week. To the
LGBTQ and gender nonconforming people who are watching this
hearing today, you may be told that you are not welcome. You
may hear that your identity is only ``temporary confusion,''
and you may have your humanity questioned.
To these individuals, we see you. We affirm you. And we are
here to fight alongside you to make sure that all Americans
have the freedom to be who we are.
With that, I thank the witnesses, again, for being with us,
and I recognize Ranking Member Comer for his opening statement.
[The statement of Chairwoman Bonamici follows:]
Prepared Statement of Hon. Suzanne Bonamici, Chairwoman, Subcommittee
on Civil Rights and Human Services
Today, we are holding a legislative hearing on H.R. 5, the Equality
Act--legislation to guarantee and expand civil rights protections for
LGBTQ Americans. I want to thank our witnesses for being with us today.
The struggle against discrimination in the United States is as old
as the country itself. For generations, marginalized people have fought
and sacrificed for the inalienable rights of life, liberty, and the
pursuit of happiness to all Americans.
The Equality Act is the next chapter in this story.
From the raid on Stonewall in 1969 to the victory of marriage
equality in 2015, we have made significant progress toward becoming a
more inclusive country for the LGBTQ population.
But we are still far from equality for all. In fact, in a majority
of States today, there are no clear, comprehensive protections for
LGBTQ individuals in education, employment, housing, health, and other
everyday services and opportunities.
Instead, we rely on a patchwork of State laws that leaves millions
of LGBTQ Americans uncertain about whether their rights and humanity
will be recognized in the State where they happen to be living,
working, or visiting.
In many parts of the country, an LGBTQ worker can get married on
Saturday, post photos of their wedding to social media on Sunday, and
be fired on Monday because of who they love. Because of who they are.
This scenario is a reality for millions of LGBTQ Americans. In
fact, 63 percent of LGBTQ people in this country have experienced
discrimination in their everyday lives.
Victims include workers, nearly half of whom have been subjected to
discrimination in the workplace. They include the nearly one quarter of
all LGBTQ Americans who forgo medical care to avoid the discrimination
in the health care system. And they include students and parents and
families of LGBTQ individuals like Kimberly Shappley, who will testify
today about her struggle to protect her 8-year-old transgender
daughter, Kai, from discrimination at school.
We cannot ignore stories like Kai's or pretend that they are
isolated incidents. We cannot accept the status quo, in which an
individual's basic civil rights are recognized in one State, but then
potentially cease to exist when they cross State lines. And we cannot
address the widespread discrimination affecting the LGBTQ community
especially transgender people of color--without recognizing and
protecting their full identity. We must see people for who they are and
for all they are. We must not diminish their humanity or their
potential.
That is why we are discussing the Equality Act today. This
legislation, introduced by Representative David Cicilline and supported
by 240 bipartisan members of the House of Representatives, is our
opportunity to affirm that this country's landmark civil rights laws
guarantee all people the right to be safe, secure, and free from
discrimination.
The Equality Act will amend long-standing civil rights laws,
including the Civil Rights Act of 1964, to clarify that prohibitions
against discrimination on the basis of sex includes gender identity and
sexual orientation.
Specifically, the bill simply adds the words: sex, including sexual
orientation and gender identity, as a protected characteristic. Where
sex is already included as a protected characteristic, it adds:
including sexual orientation and gender identity.
This language to explicitly prohibit discrimination in federally
assisted programs will make clear that federally supported schools
cannot discriminate against students and employees.
And it will also make clear that LGBTQ adults and children cannot
be denied a medical checkup, counseling and therapy, or other primary
care services because of their sexual orientation or gender identity.
Today, we may hear excuses about why Congress cannot or should not
guarantee protections for LGBTQ Americans. We may hear claims that the
Equality Act will endanger religious freedom or put women's rights and
safety at risk.
But we can look to the 20 States already providing these explicit
protections and know that such claims are unfounded. In States like my
home State of Oregon, where the Oregon Equality Act passed in 2008 with
my support as a then State legislator, the predictions based on fear
have not happened and in fact, women have experienced expanded rights
and protections.
We cannot let fear impede progress. The American story is one of
expanding equality for marginalized people and, today, we are writing
an important passage in its latest chapter.
Before I recognize the Ranking Member, I want to echo Judiciary
Chairman Nadler, who convened a hearing on this bill last week. To all
the LGBTQ and gender nonconforming people watching this hearing today,
you may:
* Be told that you are not welcome,
* You may hear that your identity is only--quote--``temporary
confusion,''
* And you may have your humanity questioned.
To those individuals, we see you. We affirm you. And we are here to
fight alongside you to make sure that all Americans have the freedom to
be who we are.
With that, I thank the witnesses, again, for being with us and I
now recognize Ranking Member Comer for his opening statement.
______
Mr. COMER. Thank you, Madam Chairman, for yielding. And I
want to add my welcome to the witnesses for being here today.
You have quite a task ahead of you.
This is the first hearing of this committee, which has a
referral on H.R. 5 that is scheduled on the bill, and it is
being considered a legislative hearing. That means we are
supposed to talk about the bill itself.
However, we skipped the step of holding a hearing on the
underlying issues of the bill. I am sure there are reasons for
that, but that means our members have not had the opportunity
to participate in a hearing focused on information gathering on
these issues and how they intersect with American schools and
workplaces until now.
So you have signed up for a huge task. A bill with a name
like the Equality Act sounds like a bill that in some way
advocates for all people. That is what we strive for in this
country, equality before the law. That is why over the more
than two centuries this country has existed we have thankfully
updated our laws to right past wrongs and bring us closer to
treating all people with the dignity they deserve.
But as I look at H.R. 5 and learn more about what is in the
bill, I am deeply troubled, and I believe most Americans would
be deeply troubled by what is really there. This bill is
following in the tradition of others we have seen so far
throughout Congress, a clever name and allegedly noble purpose,
but a vehicle for serious harmful consequences. It is
completely unacceptable that this bill today totally guts the
Religious Freedom Restoration Act of 1993, this country's
flagship law in defense of individual religious freedom.
H.R. 5 professes to protect Americans by prohibiting
discrimination based on a ``perception or belief even if
inaccurate.'' This alters Federal nondiscrimination law in ways
that will have unintended effects we cannot know sitting here
today.
Furthermore, the bill carries clear mandates for sweeping
changes and accommodations that will prove costly, burdensome,
and problematic for small businesses and schools.
I am concerned about the future ramifications of codifying
ill-defined concepts into our Nation's civil rights laws and
the harm this could bring to already vulnerable populations.
I am fortunate to represent the people of Central and
Western Kentucky, folks who believe in human dignity and fair
treatment for their fellow citizens. The poor execution of this
bill, I am afraid, will result in certain persecution for
millions of innocent Americans who are still under the
impression that religious freedom is a fundamental American
right.
Equality and freedom must coexist. H.R. 5 totally redefines
one and delivers a serious blow to the other.
Thank you, Madam Chairman, and I yield back.
[The statement of Mr. Comer follows:]
Prepared Statement of Hon. James Comer, Ranking Member, Subcommittee on
Civil Rights and Human Services
Thank you for yielding.
I want to add my welcome to all the witnesses for being here today.
You have quite the task ahead of you. This is the first hearing this
Committee, which has a referral on H.R. 5, has scheduled on the bill,
and it's being considered a legislative hearing. That means we're
supposed to talk about the bill itself. However, we skipped the step of
holding a hearing on the underlying issues of the bill. I'm sure there
are reasons for that, but that means our members haven't had the
opportunity to participate in a hearing focused on information
gathering on these issues and how they intersect with American schools
and workplaces until now. So, you've signed up for a huge task.
A bill with a name like ``the Equality Act'' sounds like a bill
that, in some way, advocates for all people. That's what we strive for
in this country--equality before the law. That's why, over the more
than two centuries this country has existed, we have thankfully updated
our laws to right past wrongs and bring us closer to treating all
people with the dignity they deserve.
But as I look at H.R. 5 and learn more about what's in the bill,
I'm deeply troubled, and I believe most Americans would be deeply
troubled, by what's really there. This bill is following in the
tradition of others we have seen so far throughout Congress. A clever
name, an allegedly noble purpose, but a vehicle for serious, harmful
consequences.
It's completely unacceptable that this bill totally guts the
Religious Freedom Restoration Act of 1993--this country's flagship law
in defense of individual religious freedom.
H.R. 5 professes to protect Americans by prohibiting discrimination
based on a ``perception or belief, even if inaccurate.'' This alters
Federal nondiscrimination law in ways that will have unintended effects
we cannot know sitting here today. Furthermore, the bill carries clear
mandates for sweeping changes in accommodations that will prove costly,
burdensome, and problematic for small businesses and schools.
I am concerned about the future ramifications of codifying ill-
defined concepts into our Nation's civil rights laws and the harm this
could bring to already vulnerable populations.
I'm fortunate to represent the people of central and western
Kentucky--folks who believe in human dignity and fair treatment for
their fellow citizens. Some of the things I see in the Equality Act go
beyond the pale of anything I've heard--from anyone. The poor execution
of this bill, I'm afraid, will result in certain persecution for
millions of innocent Americans who are still under the impression that
religious freedom is a fundamental American right.
Equality and freedom must coexist. H.R. 5 totally redefines one and
delivers a serious blow to the other.
I yield back.
______
Chairwoman BONAMICI. Without objection, all other members
who wish to insert written statements into the record may do so
by submitting them to the committee clerk electronically in
Microsoft Word format by 5 p.m. on April 22, 2019.
I am pleased to recognize my colleague and a member of the
Full Committee on Education and Labor, Congressman Joaquin
Castro of Texas to introduce the first witness.
Mr. CASTRO. Thank you, Chairwoman.
I would like to introduce a fellow Texan, Kimberly
Shappley. In Texas, we have seen a backlash, especially among
some of our politicians, against movements toward equality. But
as Kimberly and her daughter, Kai, show, our State is changing
in a positive and amazing direction.
Kimberly was propelled into advocacy by her 8-year-old
daughter, her 8-year-old transgender daughter, Kai. With
Kimberly's support, Kai socially transitioned at the age of 4.
In her position as faith outreach coordinator for Equality
Texas, she has worked with and educated universities, Christian
congregations, and church leaders. In 2017, Kimberly testified
before the Texas State Senate in opposition to S.B. 3, a bill
that would have prohibited transgender individuals from using
the restroom that aligns with their gender identity. Her family
story has appeared on the Today Show, HBO, the Huffington Post,
and Good Housekeeping, among others, and we are very proud to
welcome Kimberly here today to testify. Thank you for being
here.
Chairwoman BONAMICI. Thank you, Mr. Castro. And welcome,
Ms. Shappley.
And I will now introduce the remaining three witnesses.
Patrick Hedren is vice president for Labor, Legal, and
Regulatory Policy at the National Association of Manufacturers.
Mr. Hedren leads NAM's advocacy before Congress and the
executive branch and previously served as senior counsel for a
Fortune 15 manufacturing company.
Lawrence Lorber--did I get it right? Is senior counsel at
Seyfarth Shaw LLP. He is an experienced employment law
practitioner who counsels and represents employers in
connection with all aspects of labor and employment law. He was
appointed by congressional leadership as one of the five
original directors of the Office of Compliance charged with
implementing the congressional Account Ability Act applying 11
labor and employment laws to the Congress and congressional
entities.
Sarah Warbelow serves as legal director for the Human
Rights Campaign (HRC), leading the organization's team focused
on Federal, State, and municipal policy. She also coordinates
HRC's advocacy efforts as amicus curiae, or friend of the
court, in litigation affecting the LGBTQ community. She
previously served as HRC's State legislative director, working
with State and local legislators and LGBTQ advocacy
organizations in pursuing their LGBTQ-related legislative
priorities.
I have a couple of instructions for the witnesses. We
appreciate you for being here today and look forward to your
testimony.
Let me remind the witnesses that we have read your written
statements. They will appear in full in the hearing record.
Pursuant to Committee Rule 7d and committee practice, each
of you is asked to limit your oral presentation to a 5 minute
summary of your written statement. Also, let me remind the
witnesses that pursuant to Title 18 of the U.S. Code Section
1001, it is illegal to knowingly and willfully falsify any
statement representation, writing, document, or material fact
presented to Congress or otherwise conceal or cover up a
material fact.
Before you begin your testimony, please reminder to press
the button on the microphone in front of you so it will turn
the microphone on and members can hear you. And as you begin to
speak the light in front of you will turn green. After 4
minutes it will turn yellow to signal that you have 1 minute
remaining. When the light turns red, your 5 minutes have
expired and we ask you to please wrap up.
We are going to let the entire panel make their
presentations before we move to member questions. When
answering a question, please again remember to turn your
microphone on.
I will first recognize Kimberly Shappley.
STATEMENT OF KIMBERLY SHAPPLEY, RN, SCHOOL NURSE, OJEDA MIDDLE
SCHOOL, DEL VALLE ISD, FAITH OUTREACH COORDINATOR, EQUALITY
TEXAS
Ms. SHAPPLEY. Good afternoon, Chairwoman Bonamici, Ranking
Member Comer, and members of the committee. My name is Kimberly
Shappley. I was born and raised in the south. I am a school
nurse, an ordained evangelical minister, and the proud mother
of a beautiful transgender 8-year-old girl named Kai.
My family and I used to live in Pearland, Texas, an
ultraconservative area that was once a great fit for my strong
evangelical faith and tea party ideology until we moved 2 years
ago. You see, because of my faith and background, I was not
always accepting of the fact that my daughter is transgender,
nor did my heart and mind change overnight about lesbian, gay,
bisexual and transgender people. It has been a years' long
process that only happened because of Kai.
Even before the age of 2, Kai's mannerisms were notably
feminine. She chose traditionally female roles and toys
traditionally for girls. Immediately, I intervened. I requested
that the daycare put away the girl toys so Kai could not play
with them. But by 3 years old, Kai was telling anyone who would
listen that she is a girl. That is when I implemented a home-
remedy version of conversion therapy. I hated it, but I felt
responsible to save my child's soul. Things changed for me when
I overheard Kai praying for Jesus to take her home to be with
him forever. That is when my knowledge of science finally
overrode my poor theology. I remembered the data on suicide
risk for transgender youth whose gender identity is not
supported by their families. So Kai socially transitioned at 4-
1/2.
Around that time, President Obama issued guidance for
schools to let transgender children use the bathrooms that
matched their gender identity, a hopeful development. At first,
I thought no one had to know that Kai was transgender. I spoke
to Kai's school principal about respecting that privacy and
allowing her to use the girl's restroom before she started
school. But that could not remain a secret in our town, nor was
it authentic to who Kai is. Our district superintendent
compared transgender people to pedophiles and polygamists in a
public statement. The Lieutenant Governor told district
superintendents not to follow the Obama guidance.
The result for my daughter was a terrible school
environment. Kai was frequently locked out of the only restroom
she had access to, leaving her to have accidents in front of
her peers. She was frequently reminded of her birth name by
staff members and even by teachers. Peers bullied her with
little or no intervention from school staff, until 1 day she
came home and told me that she could not take it anymore. I
relocated my family 2 weeks later to Austin, leaving the area
that I had known for more than 25 years to save her. To this
day, I have friends and family who I do not communicate with
because I accept my daughter.
When I enrolled her in Austin ISD, we were welcomed by a
sign that read, ``We are proud to be a safe, supportive, and
inclusive campus.'' And I wept. For the first time in a long
time I felt that she would be safe. Her first day of school she
ran home to write in her diary because she had the best day
ever. She had freely used the appropriate restroom at school.
In Austin ISD, parents do not complain, and her classmates
invite her for sleepovers. District leadership has set a
standard to be kind and truly inclusive, and the staff has made
note of Kai's gifted intelligence. Her former school had been
too focused on her identity that they never even noticed her
IQ.
I currently work with Equality Texas as faith outreach
coordinator and I frequently speak in conservative spaces. I
consider my philosophy as an activist one of the most important
things that I have learned as a nurse. Educate people by
meeting them right where they are. Because of this mindset and
the mindset that I overcame, I am uniquely qualified to do
this.
But I will not always be here to protect my daughter. She,
trans kids like her, and LGB kids need the Equality Act because
they deserve a future where they will not experience
discrimination at school, when they apply for a job, or rent an
apartment. Our country had determined long ago that
discrimination is wrong. Choosing to exclude people for how
they were born is not an American value. We must do better.
I welcome questions, and I appreciate dialog, even if we
disagree. And I thank you for inviting me to share our story.
[The statement of Ms. Shappley follows:]
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Chairwoman BONAMICI. Thank you very much, Ms. Shappley, for
your testimony and for participating. And thank you, Kai, for
being here today.
Next, I recognize Mr. Hedren for 5 minutes for your
testimony.
STATEMENT OF PATRICK HEDREN, JD, VICE PRESIDENT OF LABOR, LEGAL
AND REGULATORY POLICY, NATIONAL ASSOCIATION OF MANUFACTURERS
Mr. HEDREN. Chair Bonamici, Ranking Member Comer, and
members of the subcommittee, it is an honor to testify in front
of you today on the workplace provisions in H.R. 5, the
Equality Act.
My name is Patrick Hedren, and I am the vice president of
labor, legal, and regulatory policy for the National
Association of Manufacturers (NAM).
The NAM is the Nation's largest industrial trade
association and the voice for more than 12.8 million men and
women who make things in America. We represent more than 14,000
manufacturers, of which upwards of 90 percent are small or
medium-sized.
The NAM is committed to achieving a policy agenda that
helps manufacturers grow and create jobs. We also believe that
equal opportunity is a key pillar of our great democracy, one
that allows every individual to pursue the American dream based
on his or her own talents and qualifications.
Manufacturers and the business community have made great
strides already in providing nondiscrimination protections for
our LGBT employees. There is still further to go, however, and
manufacturers believe now is the right time for Congress to act
to help our country get there.
That is why in March the NAM joined with now 46 other
industry associations representing a stunning breadth of the
American economy in support of the Equality Act. In our view,
amending the Civil Rights Act of 1964 to include explicit
nondiscrimination protections based on sexual orientation and
gender identity is a smart approach. It is less burdensome from
a business or economic perspective than other methods. In fact,
we believe a Federal standard will help manufacturers better
attract and retain a talented work force which is greatly
needed as we face a major skills gap.
According to the NAM's most recent quarterly outlook
survey, 71.3 percent of manufacturers expressed worry about
their ability to attract and retain the work force they will
need moving forward. There are nearly half a million unfilled
jobs in a sector already and about 2.4 million jobs could go
unfilled by 2028.
Attracting talented employees is a multifaceted effort but
manufacturers have known for years that an inclusive workplace
with meaningful LGBT protections helps them hire and retain the
best possible work force.
Manufacturers have been some of the strongest leaders in
creating a more welcoming workplace as outlined in my written
testimony. The Equality Act would assist our efforts by helping
manufacturers ensure that every employee knows they have a
right to feel safe from discrimination, harassment, or worse on
the manufacturing floor.
Many States and hundreds of localities have already
explicitly protected residents from sexual orientation and
gender identity-based discrimination in the workplace, all with
slightly different requirements and definitions. A uniformed
Federal approach will help business by providing a clear basic
level of nondiscrimination protection across the States. This
consistent approach would give certainty to employees who may
wish to move from one facility to another, and it would
establish predictable baseline rules for employers, making it
more cost-effective to educate employees and enforce these
protections.
The framework of Title VII brings with it two important
pragmatic features--a basic applicability threshold of 15 or
more employees, and a religious exemption that allows employers
to differentiate between employees based on a bona fide
occupational qualification. The 15 employee applicability
threshold serves principally to protect smaller firms from the
burden of compliance and oversight or red tape that applies to
larger employers. Businesses with 15 or more employees already
must understand and comply with Title VII.
This fact is a key benefit of the Equality Act. The BFOQ
defense allows religious employers to maintain their religious
values and teachings in making hiring decisions for specific
positions that require it.
By amending Title VII in this manner, the Equality Act
would also draw upon current case law regarding sex
dissemination. Employers and employees' rights would not need
to be established as issues of first impression through decades
of litigation and court opinions, these cases and EEOC
enforcement guidance to an extent already exist. The Equality
Act puts sexual orientation and gender identity on a level
playing field with other sex-based nondiscrimination
protections.
In conclusion, manufacturers have been at the forefront in
providing their employees with fair and meaningful protections
against sexual orientation and gender-identity based
discrimination. Partly, this is because talented employees
demand it. Partly, this is because employers understand the
importance of creating an environment in which the very best
people can succeed based on merit.
There is, however, also a much broader side to this
discussion, namely manufacturers believe that discrimination of
any kind is antithetical to the values we work to uphold every
day. Free enterprise, competitiveness, individual liberty, and
equal opportunity. These are the four pillars that underpin
what makes manufacturing strong. These are the values that help
make our country great. They are also the animating rationale
behind our support of the legislation. We can do this.
Thank you, and I look forward to answering any questions
you may have.
[The statement of Mr. Hedren follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairwoman BONAMICI. Thank you for your testimony, Mr.
Hedren.
And now they are calling the votes on the House floor. So
when we come back after votes we will hear from Mr. Lorber and
Ms. Warbelow, and then we will move into questions.
So the committee is temporarily in recess until immediately
after votes.
[Recess]
Chairwoman BONAMICI. The Subcommittee on Civil Rights and
Human Services hearing on the Equality Act, H.R. 5, will
resume. And I appreciate the patience of everyone waiting
during the vote series.
We are now moving to the testimony of Mr. Lorber. And you
are recognized for 5 minutes for your testimony.
STATEMENT OF LAWRENCE LORBER, JD, SENIOR COUNSEL, SEYFARTH SHAW
LLP
Mr. LORBER. Thank you. Chair Bonamici, Ranking Member
Comer, members of the Subcommittee, my name is Lawrence Lorber,
and I am pleased to be able to present this testimony at this
most important hearing.
As I set forth in greater detail in my testimony, I have
had a long career as an employment and labor lawyer both in
government positions, in private practice, and with respect to
major legislative actions.
I must note that my purpose here today is not to recommend
whether this committee or the Congress should ultimately decide
to pass H.R. 5, but rather to offer comments on this
legislation and to highlight issues which may warrant the
attention of this committee. I am not testifying today on
behalf of my law firm, clients, or other affiliations.
I begin by noting that H.R. 5 differs significantly from
the prior version of the Employment Non-Discrimination Act
(ENDA). ENDA dealt primarily with employment issues and has
evolved to thoughtfully deal with those issues. H.R. 5,
however, deals with a host of issues and existing statutes.
H.R. 5 does little other than incorporate sexual orientation
and gender identity into the definitional provisions of those
statutes without addressing any of the implementation or
interpretation issues which should be the subject of some
focus.
In particular, H.R. 5 merely includes new protected classes
into Title VII with no explanation. While it should be noted
that there are probably more statutory provisions impacting
employment with different administrative and remedial schemes,
this has been caused in part by the fact that each new
protected class brought certain issues which have to be
specifically addressed. So, when Congress passed the Civil
Rights Act in 1964, it kept equal pay separate. When Congress
addressed the issue of age discrimination shortly after the
Civil Rights Act was passed, it decided not to include age in
Title VII but created a different statutory framework. The same
decision occurred with disability issues when the ADA was not
included in Title VII with respect to employment and when GINA
was not included in the ADA.
So simply including sexual orientation and gender identity
into Title VII without the provisions on protections included
in all of the various versions of ENDA will leave employers and
members of the protected class unable to understand their
obligations or rights.
For example, ENDA prohibited the collection of data showing
the status of employees or applicants, as does GINA, the ADEA,
and the ADA. H.R. 5 has no such protection. And by including
the employment provisions of H.R. 5 into Title VII, it is
unclear at least as to whether the EO on data collection form
will have to now include sexual orientation or gender identity.
Prior versions of ENDA did not require employers to build new
or additional facilities. H.R. 5 is silent as to those
obligations. Prior versions of ENDA permitted employers to
require reasonable dress and grooming standards as long as they
were neutral and permitted employees to notify their employer
that they were undergoing or had undergone gender transition
and therefore, could assume the identity of their transition
gender. H.R. 5 is silent. ENDA prohibited the establishment of
preferences granted to individuals because of the individual's
sexual orientation or professed gender identity. H.R. 5 is
silent.
And there should be one other point emphasized. H.R. 5
seeks to deal with employment by simply amending Title VII. It
does not recognize that Title VII does not permit the EEOC to
issue regulations. Therefore, these issues will be dealt with
in litigation and the certainty asked for by proponents will
not be available. Two, it is suggested that provisions of H.R.
5 will somehow provide a degree of uniformity and consistency
in the interpretation of all these obligations, but as we well
know, there is no preemption of State or local, whereby Title
VII or indeed the other employment laws so that H.R. 5 will
offer no uniformity or consistency. It will just add another
layer of legal obligations to the already towering degree of
legal obligations and restrictions in the employment area.
I do discuss the issue of the implications of the Religious
Freedom Restoration Act (RFRA) and how it will coincide with
H.R. 5. It has been Stated that RFRA, which was overwhelmingly
passed to deal with serious concerns of religious
discrimination and which was introduced by leaders of Congress,
including Senator Kennedy and then Representative Schumer,
perhaps no longer merits consideration or enforcement. While
Congress can certainly amend or revoke statutes, it seems
strange that it will undermine the implications of one statute
for the purpose of another. It certainly should be possible to
address the issues raised by the Restoration Act without
denigrating its importance. RFRA has not faded from the statute
books.
I have addressed other issues in my testimony but remain
willing and anxious to answer your questions. Thank you very
much.
[The statement of Mr. Lorber follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairwoman BONAMICI. I thank you for your testimony.
We now recognize Ms. Warbelow for 5 minutes for your
testimony.
STATEMENT OF SARAH GALLAGHER WARBELOW, JD, LEGAL DIRECTOR,
HUMAN RIGHTS CAMPAIGN
Ms. WARBELOW. Thank you, Chair Bonamici, Ranking Member
Comer, and members of the committee for welcoming me here
today.
My name is Sarah Warbelow. I am the legal director for the
Human Rights Campaign, our Nation's largest civil rights
advocacy organization working toward full equality for the
lesbian, gay, bisexual, transgender, and queer (LGBTQ)
community. I am honored to provide this testimony on behalf of
our more than 3 million members and supporters nationwide.
In addition to testifying today before you, as a legal
expert on nondiscrimination laws, I do so as a bisexual woman
who is a proud parent of a transgender daughter and a sister
and sister-in-law to married lesbian mothers who are beloved by
their community.
A system that relies on a patchwork of law to protect LGBTQ
people facilitates unequal treatment across State lines and
from city to city. In 28 States there are no explicit,
nondiscrimination protections on the basis of sexual
orientation, and in 29 there are none on the basis of gender
identity.
While courts and agencies have increasingly interpreted sex
nondiscrimination laws in our discrimination protections in our
civil rights laws to include LGBTQ people, enforcing these
judicially crafted protections requires legal awareness,
coupled with the financial or other resources necessary to
bring the case where the question of whether you are even
covered by law is often contested. This is a luxury that is far
out of reach for the majority of our community.
The Equality Act builds upon the legacy of landmark civil
rights statutes that have made this country a stronger Nation
that recognizes diversity as an asset and not a liability. It
is essential that these foundational statutes continue to be
vigorously enforced by the courts and respected by this body.
Congress adopted the 1964 Civil Rights Act in an effort to
dismantle the racist, sexist infrastructure that framed the
daily lives of people of color and women in this country.
Recognizing that absent these protections, ordinary people were
denied the ability to fully participate in public life.
The Equality Act serves an analogous purpose by providing
critical protections from discrimination across key areas of
life, not only for the LGBTQ community but also for all women,
communities of color, and people of faith. Everyone must have
the right to fully participate and contribute to public life.
The Equality Act amends existing civil rights laws,
including the Civil Rights Act of 1964, the Fair Housing Act,
the Equal Credit Opportunity Act, the Jury Selection and
Services Act, and several laws regarding employment with the
Federal Government to explicitly include sexual orientation and
gender identity as protected characteristics. The legislation
also amends the Civil Rights Act of 1964 to prohibit
discrimination and public accommodations in federally funded
programs on the basis of sex, including sexual orientation and
gender identity.
Additionally, the Equality Act modernizes Title II of the
Civil Rights Act to provide protections comparable to those
under many State laws and the Americans with Disabilities Act,
which would strengthen protections for everyone and more
accurately reflect the services we rely upon and the places we
move through in the 21st century. The Equality Act reflects the
development of sex discrimination jurisprudence to protect
LGBTQ people.
Following the Supreme Court's decision in Price Waterhouse
versus Hopkins, courts and the Federal Government have extended
the theory of sex stereotyping to develop a clear, legal
trajectory affirming these protections for LGBTQ people.
These judicial advances provide LGBTQ plaintiffs with
meaningful legal recourse. However, they have not provided the
broad and clear uniform explicit Federal statutory protections
would bring. The Equality Act would equip individuals with more
knowledge of their rights to be free from discrimination and I
am sure that business owners, employers, landlords, and other
covered entities are aware of their obligations under law.
Incorporating these protections within the U.S. code would make
it possible for individuals and businesses to know their rights
by reading a sign posted in the breakroom instead of heading to
the courtroom.
Now is the time to pass the Equality Act. LGBTQ people live
in every State in virtually every county coast to coast. We are
your neighbors, coworkers, friends, and family. We are a part
of the diverse and dynamic fabric of our country. No one should
be subjected to discrimination based on who they are, whether
at work, in school, seeking emergency services, or picking up
the groceries. At its core, the Equality Act would deliver on
the promise of equal opportunity for all.
[The statement of Ms. Warbelow follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairwoman BONAMICI. Thank you for your testimony. Thank
all the witnesses for your testimony.
Under Committee Rule 8(a), we will now question witnesses
under the 5 minute rule. Before we begin, without objection, I
would like to enter into the record letters of support for the
Equality Act from the U.S. Chamber of Commerce, the ACLU, and
the Alaska Air Group.
Without objection.
I now recognize myself for 5 minutes.
Chairwoman BONAMICI. Ms. Shappley, thank you so much for
being here today to testify about your experience as the mother
of a transgender daughter. You exemplify bravery and humanity,
not only by taking control of Kai's education and moving your
life to a community that would be welcoming for her, but also
by devoting your time to advocating for protections for other
transgender kids and their families.
I have met with families in Oregon, I remember Ella and her
family, and I know many of them went through similar challenges
to find safety for their kids. So you talked about the
inclusive environment in Kai's school in Austin. Can you tell
us a little bit about how Kai has been affected by this new
school and what changes you have seen in her since she
transferred?
Ms. SHAPPLEY. I think the biggest thing about being in an
inclusive school district is that Kai is just a kid now. We are
not focused on other things. You know, her first day of school
she ran upstairs to write in her diary about using the restroom
at school. How sad is that? In Austin, they have signs at every
campus saying that we are an inclusive, safe school. For a mom
like me that brought healing just knowing that we were not
going to have to go through this same thing. We were so focused
on bathrooms and her name and the struggle and the things that
the superintendent was saying and doing, and way we were being
treated that we were not focused on her education. Moving to an
inclusive school district allowed my daughter to realize how
smart she is and that she loves math and that she loves
science. And we get to do normal things like normal girl fights
between her and her peers that have nothing to do with the way
that she was born.
Chairwoman BONAMICI. When you think about other kids whose
families cannot move them to a school like the school in Austin
where Kai attends now, how would the Equality Act, what would
that mean to them?
Ms. SHAPPLEY. It would allow their children to have a fair
opportunity for an education because I promise you, we were not
getting the same educational level when they were focused on
the bathroom, when they were focused on her being transgender.
She was not getting the education that she was entitled to. And
everything about Kai changed. Everything about our family
dynamic changed. That extra stress. You know, kids, especially
trans kids in schools, they are at higher risk for mental
health issues and depression and anxiety. And it is not because
they are transgender. It is because the way they are being
treated because they are transgender.
Chairwoman BONAMICI. Right. And I know a lot of the
homeless youth are LGBTQ. So thank you again.
Mr. Hendren, Hedren, sorry, thank you for your testimony
today. You talk about how in 2016 the NAM Board of Directors
voted unanimously to affirm the support of manufacturers for
equal treatment in personnel matters without regard to sexual
orientation or gender identity. And I applaud you for that
important step. And on this committee we have long supported
our manufacturing work force. And I appreciate in your
testimony how you talk about how this bill will bolster the
manufacturing sector. So some States have already passed
legislation protecting LGBTQ employees. Have you seen a
difference in the hiring and competitiveness for your member
businesses operating in those States?
And then you mentioned in your testimony also something
about if someone gets a promotion, you know, for a company that
is in several different States, how would it affect them if
they were moving from a State like Oregon with protections to a
State without? How would that affect them? How would it affect
the work force?
Mr. HEDREN. Chair Bonamici, thank you for that question, or
both of those questions.
I think what you are hitting on here is a really, really
important element of where we are as a sector right now. And
this is sort of broadly speaking but we are all about work
force. We need to attract people into the sector, and there are
some misperceptions that sort of persist about what our sector
really looks like. So, for example, people have an image in
their head of these sort of dark, dangerous, dirty factories,
and nothing could be further from the truth. We need to attract
a work force that reflects that change and who we are toward a
sector full of innovative and world-changing ideas and
execution.
The question about the regionality and the application of
that I think is going to be a little bit different for each
company, but I look at a few examples on how this has affected
companies with whom we work. And in fact, I have a handful of
letters which I would love to submit into the record on their
behalf. But I will pull on a couple examples in particular.
So, for example, General Mills has noticed that for
talented employees who are offered positions in areas that may
lack these protections, it may cause them to think twice about
taking that opportunity. And in a company like General Mills,
being able to take these rotational opportunities to broaden
their experience is critical to your growth as a leader.
Chairwoman BONAMICI. Thank you. And I need to set a good
example, and I have already gone over time, so please, if you
will submit the rest with your testimony that would be
appreciated.
Mr. HEDREN. I would be happy to.
Chairwoman BONAMICI. I appreciate it.
I yield back, and I recognize Mr. Comer for 5 minutes for
your questions.
Mr. COMER. Thank you, Madam Chair.
I am going to address my questions to Mr. Lorber.
Mr. Lorber, the public accommodations provisions in the
Civil Rights Act applies to places like hotels, restaurants,
theaters, and stadiums. H.R. 5 would greatly expand the
definition of a public accommodation to include an
establishment that provides a gathering, and any establishment
that provides a good, service, or program. In your view, does
the definition of public accommodation in H.R. 5 have any
limits?
Mr. LORBER. No, Congressman Comer. As drafted, H.R. 5 does
not put limits on definitions of public accommodations. Under,
for example, Title II of the Civil Rights Act of 1964, which
covers public accommodations, public accommodations are defined
as hotels, restaurants, and places of entertainment. Section 3
of the Equality Act expands that as you said to places of
gathering and any establishment that provides a good, service,
or program, so it focuses on gathering and program to indicate
it could cover indeed religious activities.
Mr. COMER. So could this even apply to a church?
Mr. LORBER. Yes.
Mr. COMER. Or other place of worship?
Mr. LORBER. Sure. Because they do conduct various
activities which are church-related but are public gatherings.
Mr. COMER. H.R. 5 requires businesses and nonprofit
organizations to provide access to facilities such as restrooms
and locker rooms in accord with an individual's gender
identity. Could you discuss the challenges that businesses,
other organizations, and individuals would face in complying
with this aspect of H.R. 5 and what the implications would be
if organizations and individuals were not in compliance with
H.R. 5?
Mr. LORBER. Sure. I think as I stated in my testimony,
gender identity is defined by actions and non-innate
characteristics. While access to shared facilities,
particularly locker rooms is obviously an open question, it
seems that with respect to locker rooms in particular, access
should require more than a mere self-identification, which
cannot be verified and might change. Employers certainly want
to follow the law but they also have obligations to their
employees. Gender identity differs, for example, from the
transgender community in this regard and employers will be
subject to all of the damages and other remedial provisions set
forth in H.R. 5.
Mr. COMER. So under this bill, would a school have any
choice other than to allow a biological man to participate in
women's sports if the man identifies as a woman?
Mr. LORBER. Well, I do not think it would be appropriate to
have a male participate in women's sports. As I noted in my
testimony, there is significant precedent under Title IX
addressing gender equality. Title IX's regulations at 34 C.F.R.
106(b) would seem to suggest that the situation raised in this
question would not occur. Ms. Warbelow's testimony seems to
suggest this situation only arises when the individual is a
transgender, but she ends by simply stating that the added
protected classifications ensure that all students have equal
access to the field. She cites the Videckis case, but that case
only dealt with lesbian participants on a women's basketball
team.
Mr. COMER. So, would a college or university, a public
college or university have to award him, if he were on a
women's basketball team--I am using basketball as an example--
or any sport, a scholarship that would otherwise go to a woman
if he fit the criteria for the award under H.R. 5?
Mr. LORBER. Yes, it very well might. It very well might. It
is not only public schools but private schools do receive
Federal grants.
Mr. COMER. That is right through--
Mr. LORBER. So. it is not only public institutions, and
yes, they very well might be. The way the bill is drafted it is
so broad that it would not exclude that.
Mr. COMER. So, would schools have any recourse to protect
the rights of women to have access to these opportunities under
H.R. 5?
Mr. LORBER. Well, they should but the problem again with
this bill is we are sort of overlapping on various rights.
Title IX was passed specifically to afford women rights to
participate in all activities, including sports. We now have
this bill, which by its terms would seem to change that and at
least bring into question the rights of women, if not negate
them.
Mr. COMER. Okay. Well, these are some of the concerns that
I mentioned in my opening statement, and I am sure we will have
further questions.
I yield back, Madam Chair.
Chairwoman BONAMICI. Thank you, Mr. Raking Member.
I now recognize the chairman of the full committee for 5
minutes for your testimony, or excuse me, for your questions,
Mr. Scott from Virginia. Chair Scott.
Mr. SCOTT. Thank you. Thank you.
Mr. Hedren, can you say a little bit more about the
business case for the passage of these laws? How attractive or
unattractive is a State trying to recruit businesses based on
the laws of the State in this area?
Mr. HEDREN. Mr. Chairman, thank you for that question.
I think suffice it to say, our members have been remarkably
clear with us, with me and my team, that this is of huge
importance to them. So, one other example that I can raise is
that of Dow, which finds that this is a differentiator for them
in attracting talent around the country because they are not
really located for the most part in urban areas or in States
that already provide protections like this, including as I
understand it, in their home State. But because they do provide
protections like this, they are able to attract employees that
are talented and in areas where they otherwise might lack
protections in the broader community but get them inside the
fence line, so to speak.
So it is a big deal, and in fact, they have found that not
only is there a case to make in terms of talent and protecting
employees and equality and nondiscrimination, but there is also
a business case to be made for it. So they identified that
their costs of implementing unilaterally protections for these
employees have gone down on the whole because attracting and
retaining talented employees is expensive in itself.
Mr. SCOTT. Thank you.
Ms. Warbelow, we had a suggestion that laws like this are
costly and unworkable. Although most States do not have
protections, many do. What has been the experience in terms of
costliness and workability of these kinds of laws?
Ms. WARBELOW. Yes. Thank you for that question.
You know, States across this country and hundreds of
municipalities have adopted nondiscrimination protections that
include sexual orientation and gender identity. When we look at
the data, we find that rates of complaints for sexual
orientation and gender identity are about on par when you
compare per percentage of the population to complaints based on
sex or based on race. What this demonstrates is that laws like
the Equality Act are critically needed, but that they do not
place a huge burden on businesses. In fact, the vast majority
of the Fortune 500 companies are already providing some level
of protection to their employees. But what they want to make
sure of is that their employees have those full protections
outside of the four walls that they control. So when their
employees are attending night programs for schooling, when they
are purchasing a house or looking for an apartment, or when
they are going out to dinner with their families.
Mr. SCOTT. Thank you.
And can you say a word about the religious exemption and
whether or not it can be used as a defense under the Equality
Act?
Ms. WARBELOW. So existing statutory protections within the
Civil Rights laws remain in place. Religious employers are able
to continue to limit or prefer employees of their own religion.
There are exemptions in the Fair Housing Act that remain in
place. What the Equality Act does is it limits the application
of the Religious Freedom Restoration Act with respect to this
set of nondiscrimination laws. And when Congress passed the
Religious Freedom Restoration Act, it clearly contemplated that
this would be necessary at some point in the future. In fact,
it statutorily provides for an exemption in future laws.
This does not eliminate the Religious Freedom Restoration
Act. The Religious Freedom Restoration Act will continue to
exist and will be available in instances in which the Federal
Government is itself discriminating against individuals.
For example, in 2014, a sick employee of the Federal
Government was prohibited from carrying an article of her faith
into Federal buildings so that she could go to work. She
successfully used RFRA to change the Federal Government's
policies and practices. RFRA will continue to be available in
circumstances like these.
Mr. SCOTT. Thank you.
Madam Chair, I ask unanimous consent to enter into the
record documents from the National Women's Law Center and
congressional Research Service that detail the history of the
Civil Rights Act of 1964 and the interaction of several of the
titles, especially Titles VI, VII, and IX.
Chairwoman BONAMICI. Without objection.
[The information referred to follows:]
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Mr. SCOTT. Thank you. I yield back.
Chairwoman BONAMICI. Thank you.
Without objection, I would also like to enter into the
record letters of support from Women's Rights and Gender
Justice organizations in support of full and equal access to
participation in athletics for transgender people, and also
letters from the Business Coalition for the Equality Act that
lists many employers and associations across the country in
support of the Equality Act.
Without objection.
[The information referred to follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairwoman BONAMICI. And I now recognize Ranking Member
Foxx from North Carolina for 5 minutes for your questions.
Ms. FOXX. Thank you, Madam Chairman. And I want to thank
our witnesses for being here today.
Mr. Lorber, you State in your written testimony that the
definition of gender identity in H.R. 5 is not clear. Do you
anticipate that H.R. 5's definition of gender identity will
create uncertainty or even more dire consequences for
organizations and individuals subject to the bill's
requirements? Can you expand on the problems that are created
when Congress enacts a new legal requirement but does not
clearly define what that requirement entails?
Mr. LORBER. Thank you, Congressman Foxx.
As my testimony explains, the definition of gender identity
does not provide any definitive definition. As noted in my
testimony and Ms. Warbelow's, the Hopkins decision did
interpret Title VII to prohibit discrimination based on
mannerisms or sex stereotypes. The definition of gender
identity, including appearance or other related gender
characteristics, either simply replicates the Hopkins decision
or goes further than mannerisms and related appearance. Thus
so, the obligations place on employers in section seven,
grantees in sections three and six, in places of accommodation
in which the coverage will be extremely amorphous. We have seen
this situation where definitions are not well crafted where the
Congress had to amend the ADA 20 years after initial passage
because it believed that the Supreme Court misapplied the
definitions of disability.
So the definition of gender identity, or the lack of a
definition, could well lead to years of unnecessary litigation
and uncertainty for employers and individuals.
Ms. FOXX. Thank you.
Mr. Lorber, supporters of H.R. 5 say the legislation will
not infringe on religious liberty. Can you explain to the
subcommittee what the legal effect is of the provision in H.R.
5 stating that the Religious Freedom Restoration Act of 1993
(RFRA) shall not provide a claim or defense to claims under
provisions of the Civil Rights Act amended by H.R. 5? Does this
provision eliminate the ability of organizations and
individuals to assert their rights under RFRA in the countless
matters covered by H.R. 5?
Mr. LORBER. Thank you, Congresswoman.
The Religious Freedom Restoration Act was enacted to ensure
that there would be no government imposition on religious
observance and practice. It is and was a Civil Rights Act and
it is still a Federal law. H.R. 5 creates an anomalous
situation whereby it States that one Federal law involving
civil rights addressing sexual orientation and gender identity
overwhelms and overrides another Federal civil rights law
addressing religion. I would note that the findings in RFRA
State, ``Laws neutral toward religion may burden religion
exercise as surely as laws intended to interfere with religious
exercises.'' So that by summarily negating RFRA, H.R. 5 would
seem to negate the protections that RFRA was enacted to
protect. Federal statutes must be read and interpreted to
preserve their purpose. H.R. 5 seems to supplement one statute
with another. It would seem, therefore, that section 1107, the
claims misapprehends the purpose of RFRA and should be
reconsidered and frankly deleted as inappropriate in the
context of a civil rights law.
Ms. FOXX. Thank you, Mr. Lorber.
One more question. H.R. 5 expands Federal discrimination
law to prohibit actions based on a perception even if
inaccurate, that an individual is of a certain race, color,
religion, sex, national origin, sexual orientation, or gender
identity. Do you have concerns with how this provision would be
interpreted and enforced and whether there would be
difficulties with compliance?
Mr. LORBER. Well, yes. In one respect the provision seems
to adopt in part the standard in the ADA that acting on an
assumption of a disability, whether a disability is in effect
or not, violates the ADA if the underlying action would violate
the law. Under Title VII it is already clear from the Hopkins
decision that negative inferences cannot be drawn from
mannerisms. If, however, gender identity remains as ill-defined
as it is with no specifications, then employers or managers of
public accommodations, for example, may find it extremely
difficult to establish policies to deal with the requirements
of H.R. 5. Perception is a difficult standard under the law
since it establishes a liability, frankly, on a non-fact. The
question is highlighted when the underlying protection is so
ill-defined. So the question of perception discrimination,
particularly with H.R. 5 as it defines its various new covered
classes will remain and become, I think, a substantial
imposition on employers simply to know what they have to do.
Ms. FOXX. Thank you very much.
Madam Chairman, I yield back.
Chairwoman BONAMICI. Thank you, Dr. Foxx.
I now recognize Representative Hayes from Connecticut for 5
minutes for your questions.
Ms. HAYES. Thank you, Madam Chair. I would also like to
thank the witnesses who are here today before this committee
for your testimony.
I am a career educator who just came to Congress and I have
always held one very central value, that every child, no matter
their background, their identity, their community, their
diversity, matters. And I hear a lot about employers and people
who abuse policies and how are we going to enforce policy. I
want to hear more about the people because these kids matter.
Ms. Shappley, you should not have to advocate for the right
for your child to be treated equally in the classroom. That
should be a given, and we should do our job to make sure that
happens. And you should not have to move your child to a new
school district for fear of their safety and their ability to
learn. I am sorry that happened to you and your daughter. You
should not have to figure out how to advocate for your child.
That is our job, too. Our educational system should be built in
such a way that all students of all ages know that they will be
treated with dignity and respect and will be safe in school.
As I was preparing for this hearing, I made a phone call to
our Connecticut Kid Governor, a 10-year-old girl. Her name is
Ella Briggs. And her entire platform was safe spaces for LGBTQ
youth. And 6,000 kids in the State of Connecticut voted for her
to become our Kid Governor. And she has advocated fiercely for
her community because she recognized and she understood that
while she had parents who were supportive and empowering and
loved her unconditionally, not every child has that. And she
felt bad for them. And this 10-year-old recognized that we have
to do something. That the adults have to do something. Her
inauguration was one of the very first events that I attended
as the Congresswoman from Connecticut's Fifth District, and I
promised Ella that I would bring her voice and her concerns to
Washington. So I am very happy, Madam Chair, that we are having
this hearing and for you all for coming and sharing your
testimony because Ella cannot be here. These kids cannot speak
for themselves, so they need for us to stand up and speak for
them.
Ms. Shappley, I mean, we know the statistics. You know, 30
percent of kids are missing either classes or full days of
school because they do not feel welcome, they do not feel safe,
that most of our homeless youth population is comprised of
children that come from LGBTQ community. I have seen kids
transition out, being kicked out of their homes, and end up not
graduating high school or having any opportunity for success in
the future. And I will tell you, whether it is the LGBTQ
community, whether it is religious freedoms, whether it is
ethnic backgrounds, I always operated with one question in
mind. Is this the education I would want for my child? And I
challenge everyone to ask themselves that same question. Would
this be acceptable for your child?
Ms. Shappley, you talked a little bit about having to go to
the school and advocate. Can you help us understand a little
bit better? Because the kids get it. The adults are the ones
that need an education on how to respond. Ella's platform
includes teaching teachers how to respond. Can you help us
understand how you advocated for Kai to the adults in her
community?
Ms. SHAPPLEY. Thank you. I think for the adults in the
community that want to advocate for Kai or for all kids is to
educate themselves. The HRC, the ACLU, Equality Texas, there
are resources out there to give you the information so that you
have a good knowledge of what the statistics really are.
Approximately 41 percent of transgender youth will attempt
suicide. Right? That is not acceptable.
We need communities. My daughter needs communities to stand
up. We need allies. Go to the schools. Go to the school board
meetings. Speak up. Shut down homophobic rants. If your pastor
at your church is not affirming to the LGBTQ community, have a
meeting with them and discuss why that might be, and maybe even
consider whether your tithes should go to a different church
that is affirming of LGBTQ kids because I think that we are
missing the whole point of the gospel when we sit in places
that are not teaching love.
Ms. HAYES. Thank you. I appreciate that.
I also know that many adults, their biases move forward
with them. I have seen higher rates of discipline amongst
students who identify as LGBTQ because the adults do not know
how to respond. And it is very interesting that you brought up
religion because I was thinking about that. When we are talking
about gender identity as a choice and it is not innate and it
can be changed at any time, we would never question someone's
religious beliefs which is also a choice and not innate and can
be changed at any time. So I just think we have to look at this
differently and educate ourselves because these kids are
relying on us to get it right. Thank you.
Chairwoman BONAMICI. Thank you, Representative Hayes.
I now recognize Dr. Schrier for 5 minutes for your
questions.
Ms. SCHRIER. Thank you, Madam Chair.
Thank you, first, to all of the witnesses, and Ms.
Shappley, thank you for sharing your story. I found it
particularly touching and so moving. And Kai is so lucky to
have you as her mom. You are her best advocate and such a
supporter. And you listened, and you heard, and you learned and
you did the right thing. And unfortunately, it required you to
go leaps and bounds beyond where you would have to. And
unfortunately, not all parents are so supportive, and that is
really what troubles me. I am a pediatrician, and so I see
these kids as they grow up, and I know that many parents are
not as supportive as you are. And this is one of the reasons
that so many transgender teens become homeless teens.
I wanted to tell you about one, and part of this is--you
may know this story, but part of it is for my colleagues so
that they understand what kids go through.
So this is one of my patients, and first, for the sake of
confidentiality, because I cannot use names, we are going to
call him Sam. And he comes from a family probably a lot like
yours. A very religious family. A very loving family. But he
knew that he could not talk with them about who he was and how
he felt and that he was in the wrong body. And so he came to me
because I was the only safe person for him to talk to. And I
was in the medical office and I shudder to think about all
these kids who do not have a safe place even in the doctor's
office.
He would come in for little things. I mean, practically a
broken fingernail, just so he would have somebody safe to talk
with because he could not talk to a teacher. He could not talk
to his parents. He came in. I tried to help by saying, hey, I
will sit in the room with you. We can have this conversation
together. But he knew that if that happened he would be kicked
out of the house. And so we planned together. And I got him
through a few years until he went off to the University of
Washington where he could explain to his parents who he is,
feel safe in his own skin and in his environment, and finally,
at age 18, be okay.
So one of my frustrations that I think you share is just
this failure of imagination and this failure to be able to be
empathetic in our country. We do not support stem cell research
until our own kid has a disease that could be helped from it.
We do not support marriage equality until our own child wants
to get married to the person they love. And so I am so
impressed that you are involved in,--and I have to refresh the
faith outreach coordinator for Equality Texas because I think
that is the way to change hearts and minds.
I wanted to see if you could talk a little bit about your
experience there and about how it is going. How are you getting
through to people and changing hearts and minds?
Ms. SHAPPLEY. Thank you. It started out that I just needed
Equality Texas because I went to them when I needed help for my
daughter to be able to use the restroom. And I do not even know
how it happened. Now I am just on the team, right, because I
needed them. I still need them. And I mean, who takes on
somebody with a ministry background and says, hey, do you want
to work for this LGBTQ group? Why not? So I literally had to
move from being a homophobic person into advocating for the
community that I used to be so afraid of. And I think that just
by telling our story, Kai and I just tell our story over and
over and over. And we just get blessed. Doors keep opening for
us to share in the most unlikely of places. We speak at
affirming churches. We speak at non-affirming churches. We
speak at many Baptist churches, Methodist churches. We speak
privately with pastors of mega churches and we speak publicly
with them. And we just continue to tell our story because we
believe that there is power in testimony and we stay true to
our faith. And I believe that is all we can do, and we just
continue to have faith that it will be effective.
Ms. SCHRIER. Thank you. And thank you for doing that hard
and really important work.
I also just wanted to make a couple comments for the
record. First is that I know that when we are talking about
bathrooms and bathroom safety, that the only person at risk
right now is my patient Sam. He is the one who is subject to
being injured. And I just want to say that it is maddeningly
frustrating to hear all this discussion about the bathroom. I
would say similarly about sports. Nobody chooses this so that
they can win a race or they can be a football star. That we
need to look out for these kids and young adults and make sure
that they are welcome.
So thank you. I am out of time.
Chairwoman BONAMICI. Thank you, Dr. Schrier.
I now recognize Representative Lee from Nevada for 5
minutes for your questions.
Ms. LEE. Great. Thank you all for being here and talking
about this important act.
I wanted to first ask you, Mr. Hedren, you Stated that
manufacturers believe that discrimination of any kind sharply
contrasts with the four values of free enterprise,
competitiveness, individual liberty, and equal opportunity, and
that these four pillars underpin what makes manufacturing
strong. Can you expand on how the Equality Act will help
further these values?
Mr. HEDREN. Thank you, Representative Lee, for that
question. And in fact, I would like to make a quick point.
So in 2016, when the NAM officially adopted a policy
position making clear our opposition to discrimination on the
grounds of sexual orientation or gender identity, which by the
way was a longer running and longer held belief, just recently
this spring the NAM Board of Directors adopted the four pillars
explicitly as part of the policies that we advocate for. And
that was a big moment for us. And it is for reasons just like
this.
These are important because these are about our work force.
These are about our perception in the community. This is about
talent. This is about doing the right thing in the market. And
we are frankly in a place that I think has surprised some
people. Our members have gone farther, faster than I think many
people expected. Is that perfection? No. There is always more
to go. But I look at examples of companies like Cargill, that
have had explicit protections and a perfect record on the
Corporate Equality Index for 15 years running. Cargill is a
company that is located all over the world with thousands of
facilities globally. And they find value in affirming these
values for their work force, for their customers, and for their
broader communities. So these are very, very important
protections to those who adopt them.
I would also actually like to take the opportunity to
mention Salesforce, a company we are not as often associated
with which, like many larger companies, manages a corporate
program, like an affinity group, which is a company-sanctioned
group for folks of particular characteristics that come
together and have a place to talk and network and address the
issues of the day. And in their LGBT affinity group, they found
that many people join not because of themselves and their own
orientation or identity but because of their families, because
of their children, because of their communities. I hope that
is--
Ms. LEE. No, that is great. Thank you very much.
Yes, I just wanted to followup. I am really proud of two
major employers in Las Vegas, Nevada, Caesar's Entertainment
and MGM Resorts support this legislation and are a part of the
Business Coalition for the Equality Act that we are discussing
today. How do you think these values might extend to businesses
beyond manufacturing?
Mr. HEDREN. Thank you for that question, Representative.
I think to a certain extent I need to be a little cautious
about describing issues that go beyond our industry because
really what I can talk to is what manufacturers are living now
and dealing with in their own work forces. So I do hesitate to
go extend into other industries too far.
I think that when you look at the list of companies that
have come out, for example, as part of the human rights
campaign's collection of now over 180 companies, I understand
looking at my co-panelist, and she is nodding, that obviously
extends well beyond our sector and I think gives you an example
of companies like Caesar's and MGM that would not be our
members, although perhaps who make the chips, but that also
have found it valuable for their own reasons to come out in
favor of protections like these.
Ms. LEE. Thank you. Yes, I am really proud of my State that
we champion inclusion across the board, whether it is
employment practices, educational attainment, or health care
for transgender individuals.
Can you tell us how discrimination against LGBTQ
individuals in public accommodations, including access to
health care impacts business?
Mr. HEDREN. Thank you for that question as well.
As I mentioned before with one particular example from Dow,
the value of these protections extends beyond the fence line.
So in some cases in facilities this may be the only place in a
community where employees may feel protected and welcomed. The
value of these protections obviously extends beyond that. Then,
again, to a certain extent, I am not actually able to talk
about some of the issues that other industries might face here,
but suffice it to say that being able to feel safe in your
community, and like where children can go to school and be
treated with love, kindness, and fairness is important to
employees no matter what.
Ms. LEE. Great. Thank you. I yield.
Chairwoman BONAMICI. Thank you. And I now recognize
Representative Trone from Maryland for 5 minutes for your
questions.
Mr. TRONE. Thank you, Madam.
Before I ran for Congress I ran a successful business with
over 7,000 employees. And for more than a decade before same
sex marriage became legal in this country, we offered partner
benefits for health insurance to all of our team members. I say
that not because I am looking for a pat on the back. You do not
get a pat on the back for doing what is right. I say it because
we built an inclusive workplace. I know it can be done. I know
it is time to ensure every American is protected from
discrimination at work.
Mr. Lorber, I understand the purpose of your testimony
today is not to recommend whether or not Congress should pass
the Equality Act. Without endorsing any specific legislation
and drawing on your vast experience in a private practice and
in government on employment issues, do you feel LGBTQ
individuals deserve to be protected against discrimination in
the workplace? Would you expand on that?
Mr. LORBER. Sure. I think LGBTQ individuals should be
protected, and indeed, three courts of appeals in employment
have already held that they are protected under the law so that
the issue in my view is not protection, though that is
critically important and there should be protection for LGBTQ
individuals. The real question is passing this encompassing
statute which amends a variety of other statutes without
definition and without guidance seems to me is just simply an
invitation to unnecessary litigation. It is an invitation to
unnecessarily confusion. As I said in my testimony, there was
previous legislation, the Employee Nondiscrimination Act, which
over time evolved into a fairly definitive set of guidance,
rules if you will, as to what it meant. What we are talking
about here is a quite different beast, if I could use that
term, where we are simply throwing out protections without
definition. We are dealing in a case of RFRA with another
statute, and we are in the anomalous position of simply saying
it does not matter and it does not apply except when it does.
And that to my mind is just not an appropriate way of dealing
with these issues.
But just to conclude, and I apologize for taking this time,
absolutely LGBTQ folks should be protected, in school and in
the workplace.
Mr. TRONE. Well, at least we have agreed on that point.
Thank you.
Mr. LORBER. Well, yes, we never disagreed. It is just how
it is to be done and is it to be done in a statutory manner
which simply does not make it, in my view, a lot of sense.
Mr. TRONE. Mr. Hedren, the National Association of
Manufacturers recently joined a letter with 40 associations in
support of workplace nondiscrimination protections contained in
the bill.
Madam Chairwoman, I would like to submit that letter for
the record.
Chairwoman BONAMICI. Without objection.
[The information referred to follows:]
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Mr. TRONE. Mr. Hedren, from my understanding, this level of
support is new. Why do you believe all these groups have come
together now to call on Congress to support the Equality Act?
Mr. HEDREN. Thank you, Representative Trone. And thank you
for entering the letter into the record as well. I know that is
important to us and to others who signed on to it.
Why now is a really, really good question. And I think the
answer is a little bit, to play off of my co-panelists and talk
a little bit about what has been going on in the trajectory of
cases in the Federal Courts. The State of affairs for
protections for LGBTQ individuals is a little bit confused and
it depends a little bit on where you sit. Actually, more than a
little bit. And because of that, I think employees and
employers are at times unclear what their obligations are under
the law and what will apply to them. So I would actually
disagree respectfully with my co-panelists and say the value of
statutory clarity is that it puts on notice both employers and
employees as to what rights look like and more or less how they
work.
Now, I will also say that I do share my co-panelists'
concerns with the thought of litigation that could run for
years to explain these issues further. And I would posit that
this type of litigation is not necessarily a good thing for
employers or for employees. But I do think that is the
opportunity that we have now is to work through these questions
where reasonable lawyers may disagree and to find the right way
to get them done. And for that reason I am grateful for the
chance to work with the committee and other Members of Congress
to do that this term.
Mr. TRONE. Thank you.
I yield the balance of my time.
Chairwoman BONAMICI. Thank you, Representative.
I am now going to move to the members of the full committee
who are not members of the subcommittee. We are glad they are
here today, and I recognize Representative Takano from
California for 5 minutes for your questions.
Mr. TAKANO. I thank Chairwoman Bonamici for this important
hearing. And as co-chair of the LGBT Equality Caucus and as a
former teacher, I want to ensure that schools are welcoming
places for all students regardless of their gender identity or
sexual orientation. And I want to make sure that, you know,
workers in workplaces are protected from discrimination. I want
to make sure that people, LGBT people who want to buy something
in a store or go to a hotel or do business with anybody who is
in the marketplace, that they are covered under the public
accommodations portion of this law. All Americans, and
especially children, deserve equal protection under the law. No
person, no matter where they live in this country, should face
discrimination.
Equality should not depend on the zip code where you live.
All students should be allowed to receive an education without
fear of discrimination, which is why I am proud to be a co-
sponsor of the Equality Act. California, along with 14 other
States and the District of Columbia, have laws prohibiting
discrimination against students in public education on the
basis of sexual orientation and gender identity. With two
States prohibiting discrimination on the basis of sexual
orientation, it is beyond time that we have a Federal law
ensuring protections for the most vulnerable in our communities
no matter where they live. When students attend schools they
should receive a good education, not bullying or mistreatment
because of who they are.
Ms. Shappley, I, too, was really moved by your testimony.
And just the journey you have traveled as a mother. But I know
you are a school nurse and I assume you have seen your fair
share of students who have come to you attempting to get out of
school. Can you tell me more about that?
Ms. SHAPPLEY. Yes. And I am a middle school nurse. And,
yes, we do have LGBTQ kids in the schools that need extra love.
Yes.
Mr. TAKANO. Extra love. I do not know why that kind of hit
me emotionally but you did.
I was a middle school teacher at one point, too. And I
remember having a transgender about 20-25 years ago, even as a
gay person, I did not quite understand transgender myself then.
But I knew this student was being bullied. And did not have the
tools as a teacher. Administrators did not have tools to deal
with the bullying. And there really was not a law that this
young person could use to seek protection. We know that many
students are facing some sort of bullying. And would you also
say, Ms. Shappley, it is kind of fair to say that it is
sometimes true that educators do not want to know that there is
bullying or that it is hard to know that it is going on?
Ms. SHAPPLEY. Yes, I would say that is true.
Mr. TAKANO. What are some of the social and emotional
consequences of discrimination for gender identity and sexual
orientation in schools?
Ms. SHAPPLEY. Well, in a bigger picture I guess is the way
that I can answer that. Okay?
Mr. TAKANO. Yes.
Ms. SHAPPLEY. So we have these kids who have peers that are
bullying them. There are teachers who decide that they do not
want to intervene because maybe they agree with the kids that
are bullying these kids. That was the case for us. I mean, my
child was bullied by her peers but there were staff members who
chose to look the other way. And I believe that the staff
members who were consistently calling her by the wrong name
were bullying her as well. They knew that this was hurting her
but yet they consistently did it and that to me is bullying.
Like I said earlier, transgender kids specifically, but
LGBTQ kids, they are at higher risk for mental health issues
and for physical health issues, and it is not because they are
transgender. It is because of the way they are treated.
Mr. TAKANO. It is sad to know that there are adult teachers
who do not understand and would passive aggressively
intentionally call a student by a name that student does not
want to be called by because of their beliefs.
Ms. SHAPPLEY. Correct.
Mr. TAKANO. That is a disrespect to that student.
My time is running out. I wish we could talk a lot more
about bringing this story more to light, but I appreciate your
being here today. And I want to just urge all my colleagues in
the Congress to pass the Equality Act. The time is long
overdue.
And I yield back.
Chairwoman BONAMICI. Thank you, Representative.
I now recognize Representative Davis, the chair of the
Higher Education Subcommittee, for 5 minutes for your
questions.
Ms. DAVIS. Thank you, Madam Chair.
Ms. Warbelow, I wanted to ask you thank you all for being
with us today. We appreciate it.
Federal law currently prohibits juror discrimination on the
basis of race, color, religion, sex, national origin, and
economic status. But as I think you well know, there are no
clear protections for those in the LGBT community. Why is it
important to amend the Jury Service and Selections Act to
include LGBTQ people?
Ms. WARBELOW. Thank you for that question.
You know, discrimination in jury service undermines our
democracy, and it is a serious problem. There was a case in
which a gay man was stricken from a jury based on his sexual
orientation because the attorneys believed that he could not be
unbiased in contemplating a case involving HIV medications.
This was not only damaging to him as a member of our society,
but also damaging to the process, ensuring that all Americans
have an opportunity to have a jury of their peers and that all
instances and issues that crop up in daily life are fairly
considered by a cross section of the American population. And
that is one of the reasons that the Equality Act amends this
critical area of law.
Ms. DAVIS. And have you seen clear evidence that happens?
That there really is not that opportunity to make sure that
actually it is a fair hearing?
Ms. WARBELOW. You know, it is very much jurisdiction by
jurisdiction. And it is a very small number of States that have
tackled this issue. We really need to make sure that it is
nationwide for all of our Federal courts.
Ms. DAVIS. Thank you. We have been working on it for some
time, so I appreciate that.
Ms. WARBELOW. Thank you.
Ms. DAVIS. Ms. Shappley, I want to thank you also for your
very frank, honest testimony. My colleague, Mr. Takano, just
asked you a question about the schools. We see that it made a
really big difference for Kai when she found a safe and healthy
environment. What do you think schools across the country need
to do far better then? You just spoke about the staff
involvement, of teacher involvement, and sometimes it ends up
being more negative. What do they need to do better and really
focus in?
Ms. SHAPPLEY. I think that there needs to be some
continuing education for teachers and staff. For some of these
teachers that have been around for a while, perhaps they have
not been educated on LGBTQ issues. I think that would be a
great place to start is just by educating. I think that we have
to look at leadership. We have to look at leadership,
superintendents and, you know, principals. Your teachers are
going to follow what their leaders set as an example and the
tone for the school. And I think that is a great place to start
is just to try to get people to understand that discrimination
is wrong and that they are hurting these children. People go
into education because they love children and they want to do
good things for children. And I think that if we arm them with
the education that they need they would make good choices for
these children.
Ms. DAVIS. Thank you. It is a good message. Whatever
setting you are in, it starts at the top.
Thank you. I appreciate you being here.
Chairwoman BONAMICI. Thank you, Representative Davis.
Before we move to closing, I would, without objection, like
to enter into the record letters of support for the Equality
Act from the American Association of University Women; a letter
or a map showing from the Human Rights Campaign the States that
have addressed discrimination, and importantly, the States that
have not; a letter from the National Women's Law Center; and a
letter from the National Center for Transgender Equality.
Without objection.
[The information referred to follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairwoman BONAMICI. I remind my colleagues that pursuant
to committee practice, materials for submission for the hearing
record must be submitted to the committee clerk within 14 days
following the last day of the hearing, preferably in Microsoft
Word format. The materials submitted must address the subject
matter of the hearing. Only a member of the committee or
invited witness may submit materials for inclusion in the
hearing record. Documents are limited to 50 pages each.
Documents longer than 50 pages will be incorporated into the
record via an internet link that you must provide to the
committee clerk within the required timeframe, but please
recognize that years from now that link may no longer work.
That is my favorite part of this.
So again, I want to thank the witnesses all for your
participation today. What we have heard is very valuable.
Members of the committee may have additional questions for you.
We ask the witnesses to please respond to those questions in
writing. The hearing record will be held open for 14 days to
receive those responses.
And I remind my colleagues that pursuant to committee
practice, witness questions for the hearing record must be
submitted to the majority staff or committee clerk within 7
days. The questions submitted must address the subject matter
of the hearing.
I now recognized the distinguished ranking member, Mr.
Comer, for his closing statement.
Mr. COMER. Thank you, Madam Chair, for yielding. It is very
clear this is a difficult subject, and I appreciate you all
coming to testify here today.
What is clear is that this bill is not ready to become law,
and Mr. Lorber discussed several significant concerns with the
scope and application of the language in H.R. 5, specifically
our concern with what it does to the Religious Freedom
Restoration Act, unfunded mandate in public schools, as well as
the disarray it could potentially create in women's high school
sports.
And to that point, I have several letters and documents I
want to include in the record which will highlight several
concerns with the bill.
The first letter is in opposition from the Council for
Christian Colleges and Universities; a letter from seven
medical professional organizations expressing their concern; a
letter from Women's Liberation Front; a letter from the
American Association of Christian Schools noting the harm the
Equality Act would cause to Christian education in America;
ACSI, Association of Christian Schools International expressing
concerns with respect to the Religious Freedom Restoration Act;
a letter from the Family Policy Alliance; a letter from the
United States Conference of Catholic Bishops in opposition to
H.R. 5; a letter from more than 50 religious faith-based groups
writing about the harm the Equality Act does to religious
freedom; and finally, a Wall Street Journal article I would
like to submit to the record.
Chairwoman BONAMICI. Without objection.
[The information referred to follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairwoman BONAMICI. Without objection.
Mr. COMER. Thank you, Madam Chair, and I yield back.
Chairwoman BONAMICI. Thank you.
I recognize myself for the purpose of making a closing
statement.
Thank you again to our witnesses for taking part in this
important discussion.
Every day LGBTQ Americans across the country are living
without the guarantee of basic civil rights protections. As we
heard throughout this hearing, that vulnerability is not merely
theoretical. LGBTQ Americans and their families, like Kai and
her mother Kimberly, like Ella I mentioned back in Oregon, and
millions across the country continue to face discrimination
because of who they are. This is wrong, plain and simple.
The Equality Act is our opportunity to right that wrong. By
amending civil rights legislation to explicitly include gender
identity and sexual orientation as protected characteristics,
the Equality Act would ensure that LGBTQ Americans can be safe,
secure, and free from discrimination.
There will likely be a time, perhaps in the near future,
when we will look back at this moment with a sense of
inevitability. As with many civil rights victories of the past,
we will say that history was always on our side and that the
guarantee of protections for LGBTQ Americans was only a matter
of time.
But we must acknowledge that the arc of the moral universe
does not bend toward justice on its own. It is our
responsibility, now, today, it is time to make clear that all
Americans should be able to have full confidence in their
rights regardless of who they love, or who they are, or how
they identify.
I look forward to working with my colleagues to reaffirm
our commitment to civil rights and to forge a country where
everyone has the right to be who they are free from
discrimination.
And if there is no further business, without objection, the
committee stands adjourned.
[Additional submissions by Chairwoman Bonamici follow:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Intersecting Injustice: A National Call To Action: https://
www.govinfo.gov/content/pkg/CPRT-116HPRT38141/pdf/CPRT-
116HPRT38141.pdf
UCLA School of Law Williams Institute: https://
www.govinfo.gov/content/pkg/CPRT-116HPRT38142/pdf/CPRT-
116HPRT38142.pdf
[Additional submission by Mr. Comer follows:]
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[Additional submissions by Mr. Hedren follow:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
[Questions submitted for the record and their responses
follow:]
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[Whereupon, at 4:25 p.m., the subcommittees was adjourned.]
[all]