With progress delayed in the U.S. Senate on the Equality Act, Sen. Joe Manchin (D-W.Va.) continues to be the Democratic holdout on the LGBTQ rights bill as he faces a deluge of calls in opposition to the measure — but supporters of the bill might have an ace up their sleeve if they succeed in winning support from an unlikely Republican to break the impasse on the bill.
Progressives continue to call for an end to the filibuster to advance a number of key items on the legislative agenda, including the George Floyd Act for police reform and the For the People’s Act to expand voting rights and change campaign finance laws, but even an elimination of the filibuster — an unlikely outcome in any event — wouldn’t be enough to pass the Equality Act in the Senate if Manchin is a holdout because his support is needed to reach a majority vote in the chamber.
A vote in favor of the Equality Act from Manchin, who continues to be the only Democrat not to co-sponsor the bill in the Senate, remains in question because of previous signals he’s given. In 2017, Manchin issued a statement on the Equality Act articulating concerns about schools having to implement non-discrimination principles for transgender students, stoking unfounded fears about transgender people accessing the bathroom. More recently, Manchin was the lone Democrat to vote in favor of a Title II amendment that would have defunded schools and universities if they allow biological boys to play in girls’ sports, which would essentially bar transgender kids from athletics.
“After speaking with local education officials in West Virginia, I am not convinced that the Equality Act as written provides sufficient guidance to the local officials who will be responsible for implementing it, particularly with respect to students transitioning between genders in public schools,” Manchin said in 2017. “I will continue working with the sponsors of the bill to build broad bipartisan support and find a viable path forward for these critical protections so that I can vote in support of this bill.”
A Democratic insider familiar with talks on the Equality Act said Manchin has been the focus of constituent calls in opposition to the bill, which have claimed the Equality Act jeopardizes women’s rights by giving transgender women access to sex-segregated spaces. The call to Manchin’s office are part of a larger deluge of calls against the legislation to other lawmakers. This concentration of calls, the insider said, appears to be orchestrated by conservative groups like the Heritage Foundation. The Daily Beast reported earlier this month that Manchin told one co-sponsor of the Equality Act calls to his office opposed to the legislation compared to calls in support were “a thousand to one.”
Opponents of the Equality Act have good reason to focus on Manchin, who as a rare breed among Democrats has historically been unreliable on LGBTQ rights. Although Manchin voted for the Employment Non-Discrimination Act in 2013, he skipped out during the vote on “Don’t Ask, Don’t Tell” in 2010, although he later said that was a mistake, and has never voiced support for same-sex marriage even though years have passed since the U.S. Supreme Court ruled in favor of marriage equality nationwide. Manchin’s office didn’t respond to the Washington Blade’s request for comment for an update on his position on the Equality Act.
The Republican who might get Manchin out of his shell to support the Equality Act: Sen. Shelley Moore Capito (R-W.Va.). As the junior senator from West Virginia, her support for the LGBTQ legislation would give tremendous leeway to Manchin, who could later justify his vote by saying it won bipartisan support from both senators representing his state. One Democratic insider said supporters of the Equality Act are looking to break the impasse by looking at relationships senators have in their home states, including Capito.
Why would Capito, who consistently obtained a zero score on the Human Rights Campaign’s congressional scorecard, be considered a possible supporter of the Equality Act? As in many cases with support for LGBTQ rights, the reason is familial: Her son in the West Virginia Legislature, Del. Moore Capito (R-Kanawha), is a Republican co-sponsor of legislation that would ban widely discredited conversion therapy in his state and is considered a soft supporter of a statewide LGBTQ non-discrimination bill.
Neither mother nor son, however, responded to the Blade’s request for comment for this article on whether the elder would support the Equality Act, or some form of the legislation, in the U.S. Senate.
Meanwhile, major players involved in passing the Equality Act are keeping strategy close to the vest and silent on whether they think Capito is a winnable vote for the Equality Act. The Human Rights Campaign didn’t respond to a request for comment for this article or potential Capito support, nor did the office of Sen. Jeff Merkley (D-Ore.), the lead sponsor of the legislation in that chamber.
At the same time, Democratic leaders in the Senate have yet to clear procedural hurdles on the Equality Act, which has yet to see a vote in committee, let alone a scheduled date for a floor vote. Senate Majority Leader Charles Schumer (D-N.Y.), however, publicly included a reference to the Equality Act among a list of bills passed by the House he wants to take up in the coming weeks in the Senate. The Senate Judiciary Committee didn’t immediately respond Wednesday to comment on when a committee vote would take place.
A Senate Democratic source inside the in-person Democratic caucus meeting on Tuesday said Schumer included the Equality Act in his outline for the short-term and long-term goals for his Democratic agenda. Schumer identified as the next three major efforts to be an infrastructure deal, the For the People Act and confirmation of President Biden’s nominees, including his judicial picks, in the spring and summer but included the Equality Act among other key priorities, such as gun safety, immigration reform and criminal justice reform.
“Overall, Schumer expressed to his caucus the desire to try to work with Republicans to accomplish Senate Dems’ legislative goals,” the source said. “But Schumer also cautioned that Senate Democrats do not have the luxury of time and if Republicans are intransigent, then Senate Dems will need to discuss a path forward because failure is not an option.”
President Biden campaigned during the 2020 presidential election on signing the Equality Act within 100 days of his administration, but would need nothing short of a legislative miracle for the bill to get to his desk within that timeframe.
White House Press Secretary Jen Psaki, nonetheless, said Tuesday under questioning from the Blade on the 83rd day of the administration Biden continues to stand by his pledge to meet the self-imposed 100-day deadline and “continues to work toward it,” shifting the blame for the delay to the Senate.
“And as you know, in order to sign legislation, it needs to come to his desk,” Psaki said. “And while he has certainly been a vocal advocate in his support for the Equality Act, and, obviously, as you know and noted, it passed the House, it needs to work its way through the Senate. It requires the Senate passing it in order for him to sign it.”
Asked what Biden is doing to get the Senate to pass the legislation, Psaki ticked off numerous public actions from the Biden administration in support of the Equality Act and hinted at discussions on the legislation with principals.
“Well, certainly, he’s put out a statement of administration policy,” Psaki said. “He has talked about his view that this is legislation that should pass. And he has a range of conversations about a range of topics, but also so does our legislative team who work to move forward his agenda every single day.”
One development that might shake things up with the Equality Act is the Supreme Court’s upcoming decision in the case of Fulton v. City of Philadelphia, which is expected before the end of the court’s term in June and would determine whether Catholic Social Services has a First Amendment right to deny child placement into homes of same-sex couples in foster care over religious objections. Whichever way the court comes down in the case, the ruling could let some of the tension out of the Equality Act in terms of stated concerns on religious liberty. If a vote were to happen in the Senate at the time of the ruling, that would mean legislative action in May or June.
Psaki, asked by the Blade whether the decision in Fulton v. City of Philadelphia would change the landscape for the Equality Act, said she didn’t immediately have any information on whether the upcoming decision would have any impact of efforts to pass the legislation.
“That’s an interesting question,” Psaki said. “I’d probably have to talk to our legislative team. We typically, as you know, don’t get ahead of Supreme Court rulings. But I will talk to them and see if there’s anything we can convey directly to you.”