Why Does the Infrastructure Bill Include “Sexual Orientation and Gender Identity” Language?

August 6, 2021

The U.S. Senate’s consideration of the massive Infrastructure Bill (H.R. 3684) that the House passed back in early July is becoming a shameful exercise in legislative malpractice. This form of lawmaking is bad for our democracy and recklessly violates the Senate’s tradition of being the world’s greatest deliberative body.  

Embedded within the 2,700 page bill is the language of the Digital Equity Act (S.2018), which includes in Section 7:

No individual in the United States may, on the basis of actual or perceived race, color, religion, national origin, sex, gender identity, sexual orientation, age, or disability, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity that is funded in whole or in part with funds made available to carry out this title.

This may seem innocuous. However, if this legislation becomes law, the government would effectively force potential recipients of funds made available through the Infrastructure Bill — via the State Digital Equity Capacity Grant Program embedded within it — to accept “sexual orientation and gender identity” ideology (SOGI) as a condition for funding. This would undermine the work of religious institutions that abide by historic, orthodox understandings of sex and marriage and might otherwise use these funds to serve their neighbors by advancing the purpose of the Digital Equity Act: To expand the daily access of individuals to the internet, especially those who are elderly, are incarcerated in non-Federal correctional facilities, are veterans, have disabilities, are English learners or have low levels of literacy, are from racial or ethnic minorities, or live in rural areas.

Rural faith-based colleges and universities, small faith-based businesses, and religious hospitals and medical clinics, sometimes providing the only healthcare services for miles, could be forced to violate their religious conscience or be denied participation in the program.

Senator Patty Murray introduced S.2018 and Senators Rob Portman and Angus King are the only co-sponsors. The House companion bill introduced in March 2021, H.R. 1841, had a total of two cosponsors, and received no consideration at the committee level. The House-passed version of the Infrastructure Bill did not include it. Contrast the Senate, in which S.2018 was introduced June 10, 2021, was supported by three sponsors, and received no consideration at the committee level. Yet it was placed into the Infrastructure Bill and stands to become the law of the land. As a result, the Senate is on the cusp of injecting highly contested and far-reaching SOGI rules into federal statute with blatant indifference to ensuring broad public awareness and the careful and open deliberative process established by America’s Founders. Worse yet, these rules, if included in the Infrastructure Bill, would severely undermine religious freedom in America, and tacitly affirm the pernicious, false message that the sexual morality historically taught by Judaism, Christianity, and Islam is bigoted and akin to racism.

To offer just one example of a bill that followed a very different path, look no further than the bipartisan Iraq and Syria Genocide Relief and Accountability Act of 2018 (H.R.390), enacted to bring relief to victims of genocide and justice to the ISIS perpetrators. It took two years to craft the bill’s language and guide it through House and Senate committees of jurisdiction, numerous amendments and votes, and finally to the president’s desk for signature. The existential crisis on the ground for Yazidis and Christians in northern Iraq and Syria, who were at risk of extinction in their ancient homelands, could not have provided a more urgent basis for congressional action. Yet, are we to accept that the SOGI provisions in the Infrastructure Bill address matters of such weightiness that their introduction into federal statute should bypass all of the procedural steps designed to ensure accountability and create laws that promote the common good?  

This is no way for Congress to do business.


David Trimble is RFI’s Vice President for Public Policy and Director of its Center for Religious Freedom Education

Nathaniel Hurd is Director of RFI’S North America Action Team and its Senior Fellow for Public Policy