December 18, 2020
Note: This article was originally published in the GLAD Winter Briefs, December 2020. It has been updated following the reintroduction of the Equality Act in the U.S. House on February 18, 2021.
Let’s make sure this U.S. Congress is the one to pass the Equality Act and bring a level playing field to LGBTQ people nationwide as we live our lives. We give so much to our communities, work, and families and need and deserve the same dignity, fairness and respect as others.
Our national civil rights laws seek to move us closer to the promise of a level playing field for all by preventing discrimination simply because of who we are in jobs, housing, public spaces, schools, and more. Those laws already provide critical protections against discrimination on the basis of race, color, national origin, sex and religion. The Equality Act would update the Civil Rights Act of 1964 (“CRA”) and other federal civil rights laws to affirm that sexual orientation and gender identity are clearly and explicitly included within those protections.
This cannot come soon enough, especially for those at the intersections of LGBTQ status and being Black, Indigenous, Latinx or another person of color. Discrimination contributes to and compounds poverty and other harmful outcomes. If people can’t get a job because they are queer, and they can’t get housing because they have no job, and are less safe when unhoused, things spiral in an increasingly difficult direction. While updating the CRA and other civil rights laws to include LGBTQ people is no panacea, it is an important step on the long journey to equitable opportunities.
President Biden has said passing the Equality Act is a priority. If the U.S. Congress and the President agree on legislation this session, they will be honoring the will of the American people. By large and stable majorities over many years now, Americans see LGBTQ people as part of “We the People.” That phrase has signaled civic belonging for centuries in this country and it is time for our leaders and our laws to acknowledge what is as pervasive as the air we breathe: LGBTQ people are people like everyone else and simply want to be treated with dignity and respect.
The Equality Act also expands important protections for everyone covered under the CRA, by updating key provisions in addition to explicitly including sexual orientation and gender identity. By adding a ban on sex discrimination (including sexual orientation, gender identity and pregnancy) in public accommodations, it would no longer be legal to exclude breastfeeding individuals (LGBTQ or not) from public spaces, or to charge women more for goods and services. The bill also expands what counts as a public accommodation beyond the frame of reference in 1964 (which was quite narrow) to a broad range of retailers providing goods and services, to modern public venues, and to transportation, including car services like Lyft and Uber, taxis, trains and airlines, where people of color face consistent discrimination.
Another signal change involves following the money! Title VI of the CRA requires public or private entities that receive assistance from any federal agency to take concrete steps to ensure nondiscrimination in their programs and activities. By forbidding “sex” (including sexual orientation, gender identity, and pregnancy) discrimination for any program or activity receiving federal financial assistance, the law touches every community in the nation. Those federal dollars are distributed to entities like public schools, health care institutions, law enforcement, child welfare and justice systems, as well as services and supports like shelters for unhoused people, substance use treatment, disaster relief, mortgage and low- income housing assistance, SNAP (food stamps) and school meals, among numerous others.
Last summer’s Supreme Court ruling in Bostock v. Clayton County provides us with momentum. That victory for two gay men and a transgender woman vindicated decades of advocacy in the LGBTQ movement arguing that it is sex discrimination when LGBTQ people are mistreated because of who they are. Bostock arose in the workplace context, but its reasoning applies far more broadly, as President Biden’s January 20 executive order affirmed. The Bostock ruling and the President’s order that it be applied throughout federal agencies are huge steps forward, but we are at a both/and point. We must continue litigation efforts in and beyond the workplace context; continue work in the states without explicit sexual orientation and gender identity protections in their laws; and definitively amend the CRA, the Fair Housing Act, the Equal Credit Opportunity Act, the Jury Selection and Services Act, and laws governing federal employment. The Equality Act would do all of this; its existence would help both to prevent discrimination, including against the most vulnerable, and to remedy it.
Simple – and clear – right? Of course, but we know it will not be easy. The U.S House voted favorably on the Equality Act in 2019, but the Senate has yet to consider it. We still hear the same old nonsense from those who oppose the protections the Equality Act would provide – fears and fabrications about LGBTQ people being a threat to others on the one hand, or ridiculing the idea that discrimination against LGBTQ people even exists on the other. That tells us that we have work to do – but the time is now!
We’ll have to push hard. That means taking lots of deep breaths, doing lots of listening, and pushing hard to persuade both the courts and the Congress. But momentum, and the majority of the American people, are on our side. This can be the year when we succeed in securing the dignity and respect LGBTQ people, and all people, need and deserve to live their lives and contribute to their communities.