What the Equality Act Could Mean for LGBTQ Civil Rights

The Equality Act of 2021, which passed the House in February, is currently being considered by the Senate and, if passed, would become the nation’s most comprehensive civil rights bill. It amends existing civil rights laws, including the Civil Rights Act of 1964, to provide explicit permanent protections for LGBTQ people under federal law in employment; housing; federally funded programs, including those for education and health; public spaces; credit; jury service; and places such as retail stores and transportation. Although there is an uphill battle to get enough votes in the Senate, the Senate Judiciary Committee held a hearing on the bill in March, the first in its long history. The feminist Rep. Bella Abzug, D-N.Y., introduced anti-discrimination legislation to protect LGBTQ people in 1974; ever since, similar bills have been introduced in every session of the House, except one, and it has passed twice.

Although there is strong public support for LGBTQ rights and protections, including with a majority of Republicans and white evangelical Protestants, advocates are concerned that many people remain unaware of the discrimination that LGBTQ people still face. “There has been so much progress and public support for these protections, but the paradox has been that many people think that we already have antidiscrimination protection in the workplace, public accommodations, etc., and we don’t,” said Cathy Renna, communications director at the National LGBTQ Task Force. “People don’t realize that you can get married on Saturday, post your wedding photos on Instagram, and be fired on Monday in many states. An important piece of this is the inclusion of the business community as allies. In many ways, they are ahead of the politicians and have created protections within their companies.”

Additionally, a 2020 survey by the Center for American Progress found that more than one in three LGBTQ Americans faced discrimination of some kind during the previous year; over half experienced harassment or discrimination in a public place such as a store, public transportation, or a restroom; 36% in the workplace; and 21% at school.

While President Biden has said passage of the Equality Act is a priority, and a broad coalition is working to pass the bill, including religious leaders and the business community, already this year there have been 250 anti-LGBTQ bills introduced in state legislatures, an unprecedented number. These include 66 bills that prohibit transgender youth from participating in sports consistent with their gender identity; 43 bills that would allow people to claim a religious belief as justification to refuse to provide services, including health care; and 15 bills that would prohibit transgender youth from using restrooms or locker rooms consistent with their gender identity. By May, 17 anti-LGBTQ pieces of legislation had been enacted into law, breaking a previous record of 15 such bills in 2015.

Many of the recent anti-transgender laws “are unconstitutional and are being challenged in court,” said David Brown, legal director of the Transgender Legal Defense & Education Fund. In fact, earlier this month, the U.S. Department of Education announced that Title IX’s prohibition of sex discrimination includes discrimination based on sexual orientation and gender identity. “The Equality Act would clarify nondiscrimination protections, and trans folks and those who love them wouldn’t have to go running to the courts every time there is a new bill,” said Brown. “People who want to be divisive for political gains have selected trans people to go after right now. They pick a fake issue that has no basis in fact, and they engage people in this misinformation and use them to put forward their own agenda. But the news coverage of the anti-transgender bills has also been galvanizing. And for many people who haven’t thought about these issues before, it shows the dire situation that we are in and underscores the need for the Equality Act.”

In Florida, a transgender youth sports ban bill was signed into law by Governor Rick DeSantis on June 1, followed by his vetoing of all funding for LGBTQ programs in the state budget. But these efforts have motivated activists. “We are partnering or in coalition with many state and national organizations,” said Yordanos Molla, deputy field director of Equality Florida, a statewide LGBTQ advocacy organization. “We have a broad coalition working on it here: the immigrant LGBTQ community, people of faith who are LGBTQ, and the business community. When people share their personal stories with legislators, that has been an effective strategy. Passage of the Equality Act would send the message that Congress and America is ready to change and to live up to its values. It would match with the public support that is already there.”

Last summer’s Supreme Court ruling in Bostock v. Clayton County affirmed that the prohibition on sex discrimination in Title VII, the federal employment nondiscrimination law in the 1964 Civil Rights Act, extends to discrimination based on sexual orientation and gender identity. Biden issued an executive order on his first day in office to implement the Bostock decision, directing agencies to enforce federal laws that prohibit sex discrimination to include discrimination based on sexual orientation and gender identity. But without a federal law, there are still gaps in protection because “the Bostock decision doesn’t apply to public accommodations and federally funded programs, which don’t prohibit discrimination based on sex,” said Naomi Goldberg, deputy director and LGBTQ program director of Movement Advancement Project. Title VI of the 1964 Civil Rights Act prohibits discrimination based on race, color, or national origin in federally funded programs and activities, but doesn’t include sex discrimination. “The Equality Act adds explicit nondiscrimination protections into these areas and codifies them into federal law so if another administration comes in, they wouldn’t be able to undo them. And federal law supersedes state laws. The past eight years highlight that we need to codify these protections through legislation so we are not at the whims of another administration. This bill is really important because it takes us beyond marriage equality and it is about people’s day-to-day lives: where they go grocery shopping, what day care they use.”

The Equality Act could also “have a deterrent effect on states seeking to pass more discriminatory laws,” said Julie Gonen, federal policy director at the National Center for Lesbian Rights. “We need every LGBTQ person and ally in this country to mobilize and let their federal representatives know that this matters. One of the good things that occurred during the Trump presidency, with its relentless assault on civil rights, was an increased sense of community and shared struggle across progressive organizations and movements. Coalitions grew larger as advocates increasingly saw our goals as intertwined and interdependent. There is coordination around the Equality Act being facilitated by the Leadership Conference on Civil and Human Rights, and there is also a new campaign — called Freedom & Opportunity for All — that has formed to intensify and focus the advocacy and get the bill over the finish line.”

On June 17, the Supreme Court issued a unanimous ruling in Fulton v. City of Philadelphia, which allowed a religiously affiliated child welfare agency an exemption to the city’s nondiscrimination policy for foster and adoptive parents. However, advocates were relieved the court limited the ruling to one single foster care agency and did not create a sweeping religious exemption as many feared it could have; further, the decision allows for nondiscrimination laws and their enforcement. But it also underscored the need for federal legislation. The Fulton decision “shows even more why we need the Equality Act,” said Renna. “When you have situations like this that pop up in cities or states, it demonstrates that we need to have overarching federal anti-discrimination laws that protect LGBTQ people, people of color, and other marginalized groups. This ruling makes us even more committed to working to pass the Equality Act and adds urgency to our work. It would mean we are no longer second-class citizens. This has been talked about for decades. It is beyond overdue.”