    [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:]

        [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        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.
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        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.
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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:]

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        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:]

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        [Questions submitted for the record and their responses
    follow:]

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        [Whereupon, at 4:25 p.m., the subcommittees was adjourned.]

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