Loyola University Chicago School of Law, JD 2022
Last week, the Senate Committee on the Judiciary held its first round of hearings regarding passage of HR 5, known as the “Equality Act.” The Equality Act aims to codify protections against discrimination based on sexual orientation and gender identity. President Biden has continually reiterated his support, urging “Congress to swiftly pass this historic legislation.” While the bill has been introduced multiple times before, its potential impact has changed with the U.S. Supreme Court’s rulings in cases like Bostock v. Clayton Co, which held that terminating a man’s employment because he had a same-sex partner qualified as sex discrimination under Title XII of the 1964 Civil Rights Act. Rather than rely on the term ‘sex’ as an umbrella encompassing sexual orientation and gender identity, the Equality Act would actually amend the 1964 Civil Rights Act to explicitly prevent discrimination based on sexual orientation and gender identity, in addition to race, color, religion, sex and national origin. For all of these groups, the Equality Act would also go beyond the 1964 Civil Rights Act’s protections in the areas of employment and housing to have a broader reach, by including federally funded programs and “public accommodations,” which can include retail businesses.
Equality Act supporters are remaining cautiously optimistic, as the bill also previously passed the House in 2019. The bill’s future in the Senate is unclear, especially in light of a House vote that was strongly divided along party lines: 221 Democratic votes were aided by only 3 Republican votes in favor of the bill’s passage. Meanwhile, 206 Republicans voted ‘Nay,’ with two representatives not voting.
All those in favor, say “Yea”
The Equality Act’s advocates also maintain that it will “simply extend basic, broadly accepted tenets of the Civil Rights Act to classes of people that the bill doesn’t explicitly protect,” NPR reported. The White House has demonstrated its support, with President Biden making its enactment a top legislative priority during his first 100 days in office, as well as issuing an executive order directing agencies to interpret the Bostock ruling to apply beyond employment discrimination to other areas of the law where sex discrimination if prohibited. Equality Act proponents note that this bill would solidify such protections so that they do not rely on changing administration’s differing interpretations.
Notable proponents of the Equality Act include the ACLU, the Human Rights Campaign, and the American Psychological Association (APA). Supporters like the Human Rights Campaign argue that the Equality Act would fill existing gaps in the “patchwork” of anti-discrimination laws across the states that leave LGBTQ Americans vulnerable to discrimination (currently 27 states do not have LGBTQ anti-discrimination laws). The Equality Act would remedy this by creating explicit federal protections for LGBTQ Americans across previously overlooked, yet important areas of life, including housing, credit, and public spaces and services.
Representative David Cicilline (D-RI) acknowledged that the House’s vote showed how Congress was “catching up to the rest of the country,” citing shifts in public opinion regarding LGBTQ rights and anti-discrimination legislation. These attitudes are corroborated by research demonstrating that such protections are greatly needed. A 2020 survey from the Center for American Progress revealed that 1 in 3 LGBTQ Americans, including more than 3 in 5 transgender Americans, experienced discrimination in the past year. Research published by the APA demonstrates that in addition to discrimination adversely affecting physical and mental health, public policies aimed at reducing discrimination and extending legal protections for LGBT people are actually associated with reduced stigma, leading to better physical and mental health outcomes.
Those opposed, say ‘Nay’
Opponents of the Equality Act anticipate negative effects with respect to religious freedom, freedom of speech, and biological sex. The Heritage Foundation, one of the bill’s most fervent challengers, contends that “Equality Act” is a misnomer, since the law would actually “further inequality by penalizing everyday Americans for their beliefs about marriage and biological sex.” The Equality Act’s opponents cite to situations, like the one in the Masterpiece Cakeshopcase to garner fear around the effects that federal LGBTQ-friendly legislation would have on “businesses or organizationsthat have religious objections to serving LGBTQ people.” In Masterpiece Cakeshop, the Supreme Court ruled in favor of a Colorado baker who refused to design a custom cake for a gay couple.
By specifying its application to “public accommodations,” the Equality Act seeks to overtly prohibit establishments like bakeries, flower shops, custom t-shirt businesses, and wedding-video-production service companies, from the types of discrimination the Civil Rights Act currently prohibits, while clarifying that this includes discrimination based on sexual orientation and gender identity.
Many of these religious concerns stem from the Equality Act’s explicit mention that it trumps the Religious Freedom Restoration Act (“RFRA”). This provision aims to bar entities from using RFRA as a defense to claims made under the Act. Advocates maintain that this will prevent use of RFRA as a “license to discriminate,” but opponents argue that it will be used “to punish people for their beliefs.” Politicians such as Representative Marjorie Taylor Greene (R-GA) have repeatedly voiced opposition to the Equality Act. Some “feminist and women’s groups” also oppose the bill based on fears that the bill “endangers the sex-based rights of women and girls, including ‘women’s sports’ and ‘women-only’ spaces.”
With such division, the Equality Act’s future is still uncertain. Senate Democrats broadly support the bill, but it needs sixty votes to avoid a filibuster. Regardless of its success in the Senate, it demonstrates a conitnued push and growing support for permanant protections for the LGBTQ community.