This article was originally published on Advocates for Truth under the title “Should Christians Support Fairness For All?“
Since the Obergefell decision legalized same-sex marriage in 2015, there has been increasing political tension between the LGBTQ community and religious communities that hold to traditional views of gender and sexuality. More and more cases like cake baker Jack Phillips are arising (Phillips has been sued for refusing to use his creative talents to make cakes for a gay wedding and celebrating a gender transition). Holding to convictions about marriage being between one man and one woman or about gender being tied to biological sex are increasingly being deemed “discriminatory.”
In response to this conflict, for several years, LGBTQ advocates have tried to get the Equality Act passed through Congress. This would amend numerous pieces of civil rights legislation to include sexual orientation and gender identity as protected classes similar to race and sex. It also prohibits the use of the Religious Freedom Restoration Act as a legal defense if someone were to allege discrimination. Conversely, defenders of religious liberty rights have sought to strengthen the rights of individuals to act according to their conscience in all aspects of their life.
In addition, some want to find a compromise between both sides. One such example is called Fairness for All. What is Fairness For All and how Should Christians respond to it? Is this act a middle ground that Christians could support?
What is Fairness For All?
Fairness For All is legislation that grants civil rights protections to LGBTQ individuals while seeking to protect religious liberty. It is based on the Utah Compromise, which prohibited discrimination against LGBTQ individuals regarding housing and employment in exchange for some religious liberty protections for churches and nonprofits. It was broadly supported by LGBTQ advocates and the Church of Jesus Christ of Latter-Day Saints (the Mormon Church).
Fairness For All seeks to apply similar principles to federal law. It strikes a balance between LGBTQ rights and religious liberty rights by adding “sexual orientation” and “gender identity” to numerous civil rights legislation, most prominently the Civil Rights Act of 1964. In return, it carves out some exemptions for religious institutions from complying with these protections and compromising their beliefs.
The bill is divided into several sections. The ones of primary importance to Christians address discrimination in places of public accommodation, federally funded programs, and employment discrimination. The remainder of the legislation deals mainly with forbidding discrimination on the basis of sexual orientation and gender identity in housing, federal jury service, and refugee resettlement. It also creates a new federal program to combat bullying in schools.
Evaluating Fairness For All
In comparison to the Equality Act, Fairness For All does make some improvements:
- It limits the definition of gender identity. Unlike the Equality Act, Fairness For All requires that if someone is using a gender identity different from their biological sex, that evidence must be provided to show that such an identity is being genuinely held. This is to avoid situations where someone can simply identity one way for nefarious reasons (for example, accessing a restroom or locker room of the opposite sex to sexually assault someone.)
- While the Equality Act eliminates the use of the Religious Freedom Restoration Act as a legal defense against claims of unlawful discrimination, Fairness For All does not.
- It grants some limited protections to churches, nonprofits, religious education, and other religious institutions. In general, they won’t be considered places of “public accommodation,” will be allowed to hire and fire employees in accordance with their convictions, and will still be eligible for federal funding, with some exceptions.
- It prevents any of the language in the bill from being construed to provide or pay for abortions.
- It gives some explicit protections on speech in the workplace.
However, there are some major drawbacks to Fairness For All:
- It gives almost no conscience protections to medical professionals. Doctors or hospitals would be forced to perform gender transition surgeries if they already provide similar medical procedures. For example, a doctor that performs hysterectomies for women who develop cancer in their uterus would then be compelled to perform a hysterectomy for a woman wanting to transition to a man.
- It does not address Title IX and women’s sports. Fairness For All does not prevent biological men from participating in women’s sports.
- It offers no protections for creative professionals like Jack Phillips. Christian-owned businesses could be forced to create products (like wedding cakes) with speech or artistic expression that violates their conscience.
- The Supreme Court’s recent Bostock decision held that protections against discrimination on the basis of “sex” now include “sexual orientation” and “gender identity.” While Fairness For All limits the definition of sex in employment discrimination, it does not do so in other parts of the bill.
- It is unclear how gender identity plays into sex-segregated spaces like locker rooms. The way the bill is written seems to suggest that businesses must allow someone of the opposite sex to access these sex-segregated spaces but that people may request more privacy if they are uncomfortable.
- It puts greater burdens on religious foster care and adoption agencies and limits traditional access to federal funding. Parents who hold to traditional views of gender and sexuality are also forced to treat children under their care in accordance with their sexual orientation or gender identity.
- In order to receive the limited protections offered in this bill, some institutions must demonstrate that they are “substantially religious.” Who gets to decide who qualifies as substantially religious? If challenged, it will most likely be a court. This could set up future lawsuits for religious institutions.
At the most fundamental level, though, Fairness For All treats sexual orientation and gender identity as primary and religious liberty as secondary. By adding sexual orientation and gender identity to civil rights legislation, it equivocates these characteristics with things like race and biological sex. Thus, religious liberty and conscience protections become “exceptions to the rule” rather than fundamental rights. Are we to believe that an exception of that nature will last very long? Probably not. Such thinking will weaken the religious freedoms of individuals in the public sphere. While some protections are given to institutions like churches and Christian colleges, our individual rights to hold to our beliefs in public are significantly reduced.
What Does the Bible Say?
As has been written in previous articles, the Bible is clear about key realities concerning gender and sexuality:
- God created us male and female in his image (Genesis 1:26-27, 5:2). This is deeply connected to our physical bodies (our flesh, e.g. Genesis 2:24, Romans 1:24-27, 1 Corinthians 6:16).
- Marriage was created to be between one man and one woman (Genesis 2:24, Malachi 2:14-16, Matthew 19:4-6, Mark 10:6-8). It is a physical representation of the greater spiritual reality which exists between Christ and his Church (Ephesians 5:22-33).
- Sex was created to be a mutual expression of love and unity between husband and wife (Genesis 2:23-24, Proverbs 5:18-19, 1 Corinthians 7:2-4).
- Sexual sin starts in the heart (Matthew 5:28, Romans 1:24-27, James 1:14-15). It is not limited to homosexuality or transgenderism. Everyone stands guilty before God and can find hope and forgiveness through Christ (Romans 3:23).
Thus, out of love for our neighbor, we should not seek to advocate for laws that further confuse issues of gender and sexuality.
As was mentioned in the article on the Equality Act, not everything in the Equality Act or Fairness For All is bad. Christians can agree that in most cases, Americans who identify as LGBTQ should not be discriminated against when it comes to housing, jury selection, and even most employment and places of public accommodation. Yet, since the Bible does not ultimately address how this can be politically accomplished, Christians can come to different conclusions about what is the best way to achieve these goals in a way that does not compromise religious liberty or the rights of conscience.
Fairness For All tries to strike a balance between protecting the rights of LGBTQ Americans and those who hold to traditional views of gender and sexuality. While it offers a number of improvements compared to the Equality Act, the protections that Fairness For All offers to religiously-minded Americans are limited. Protections for medical professionals, women’s sports, and creative professionals are glaringly absent. But its biggest weakness is that it ultimately treats LGBTQ rights as fundamental and religious liberty rights as exceptions to the rule. This is a formula that will not sustain religious liberty in the long term. While some Christians might support Fairness For All as an alternative to the Equality Act, wisdom should lead us to advocate for better legislation that offers stronger protections for religious liberty as we strive to hold to our convictions with a clear conscience (Acts 24:16).
Want to Know More?
- Text of 2021 Fairness For All Act
- Alliance for Lasting Liberty – Fairness for All
- The Gospel Coalition – The FAQs: What Christians Should Know About the Fairness for All Act
- Ethics and Religious Liberty Commission – ERLC opposes the Fairness For All Act of 2021
- Heritage Foundation – “Fairness for All” Is Well Intentioned but Inadequate and Misguided
- Family Research Council – The Unfairness of “Fairness for All”
- Albert Mohler – The Briefing: Monday, December 9, 2019, Fairness For All
- Alliance Defending Freedom – The Troubling Ideology Behind “Fairness for All”
- Council for Christian Colleges and Universities – Fairness for All
- AND Campaign – The Federal Fairness for All Act
- Washington Blade – Current law vs. Equality Act vs. Fairness for All Act — What’s the differences?