What the Equality Act Means for LGBTQ Americans

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Editor's Note: This article has been made into an episode of The Advocate's podcast The Ten. Click here to listen to Zach Stafford dive deep with Trudy Ring into the future of the Equality Act.  

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If you’re one of the 42 percent of LGB Americans who have experienced discrimination, the 78 percent of transgender Americans who have, or even one of the straight or cisgender folks who rarely encounter bias, the Equality Act has something to offer you.

The legislation, introduced in Congress today, would amend federal law to provide a wide range of protections against discrimination based on sexual orientation and gender identity. It goes far beyond its predecessor, the Employment Non-Discrimination Act, which never became law. ENDA dealt with employment only. The Equality Act would ban discrimination not only in employment but in housing, credit, public accommodations, education, federal financial assistance, and federal jury service.

Also, while ENDA was a freestanding bill, the Equality Act would amend existing law, including the Civil Rights Act of 1964, the Fair Housing Act, the Equal Credit Opportunity Act, and the Jury Selection and Service Act. It also would clarify that the Religious Freedom Restoration Act could not be used as a defense for discrimination on any basis.

In employment, the Equality Act would apply to the same employers as the Civil Rights Act: any private- or public-sector employer, including labor organizations, with at least 15 workers, according to documents supplied by the office of Rep. David Cicilline of Rhode Island. It would maintain an exemption allowing religious corporations, associations, educational institutions, and societies to hire only individuals of a particular religion to perform work connected with their religious activities.

It includes exemptions in some other areas; in housing, for instance, it would keep the Fair Housing Act’s exemptions for owner-occupied rental housing that has four or fewer units and for individual roommate arrangements. Under public accommodations, it would maintain exemptions for religious organizations or private clubs that limit rentals or services to their members. Contrary to the myth that it would somehow threaten religious freedom, it would not regulate what ministers can say from the pulpit or require them to participate in any ceremony that goes against their beliefs.

The approach of amending existing law helps to "assure reasonable people that religious protections are going to operate the same way they always have," says Sarah Warbelow, legal director for the Human Rights Campaign.

Even with the exemptions, the Equality Act would offer sweeping prohibitions on discrimination and cover many more Americans than those currently protected under state and municipal laws. Only 21 states have laws that explicitly ban discrimination based on sexual orientation, and only 20 of those also include gender identity. Fifty percent of LGBTQ Americans live in states without such laws.

In surveys, 42 percent of lesbian, gay, and bisexual people, and 78 percent of transgender people, have reported experiencing discrimination or harassment on the job because of who they are. The Equality Act does offer protections for straight and cisgender people as well, though — while discrimination on the basis of being cis or heterosexual is rare, the act would make it illegal to refuse a job, housing, etc., to someone simply because he or she is straight. And discrimination and harassment can take place because of someone’s perceived identity in addition to their true one, or because of their association with someone of a certain identity. So if you’re experiencing trouble at work because you’re perceived to be lesbian or you’re standing up for LGBTQ rights, the act would provide redress.

The legislation would also clarify the definition of sex under Title IX of the Civil Rights Act, which bans sex discrimination. It would assure that discrimination on the basis of sex includes discrimination on the basis of sexual orientation and gender identity, including sex characteristics and intersex traits, as well as on the basis of sex stereotypes or on the basis of pregnancy, childbirth, or a related medical condition. The Equal Employment Opportunity Commission and several federal courts have embraced this expanded definition of sex discrimination, but the U.S. Supreme Court has yet to rule on the issue, so the definition is not yet enshrined in federal law — which is what the Equality Act would do. There are a couple of places in existing civil rights law where there aren't prohibitions on sex discrimination — those covering public accommodations and federally funded programs — and the Equality Act would add sex discrimination there, Warbelow points out.

In addition, the act would expand the types of public accommodations covered by antidiscrimination law. This would include those listed in recent civil rights laws, such as the Americans With Disabilities Act — retailers, health care providers, transportation services, and adoption agencies, among others. The Civil Rights Act, Warbelow notes, reflects the types of venues where there were concerns about discrimination in the 1960s, such as restaurants and public swimming pools, but worries about discrimination in retail establishments, taxi services, and other areas have surfaced in more recent years.

As for small businesses where discrimination is a concern, such as wedding photographers or bakers, they could not turn away customers simply because of who they are, although these businesses would remain free to determine what goods and services they sell. For example, a bakery could limit its business to birthday cakes — but if it sells wedding cakes, it would have to provide them to all customers.

And the act would ensure that transgender people have access to the gender-specific facilities they need — which does not, as anti-trans activists would have it, put cisgender women and girls at risk. Hundreds of antiviolence organizations and numerous studies have stated that trans-inclusive public accommodations policies do not lead to sexual or physical assault and that anti-trans discrimination does nothing to prevent such assaults.

The Equality Act, however, does nothing to address the Trump administration’s ban on military service by transgender people, which the administration plans to implement within a month even as court challenges to it proceed. That’s because the military is not subject to federal civil rights law. Other bills have been introduced to fight the ban, in addition to the four lawsuits filed against it.

Speaking of lawsuits: Opponents of LGBTQ-inclusive antidiscrimination legislation often contend it would lead to a flood of lawsuits, but that has not been the case in states with such antidiscrimination laws, according to the Williams Institute, a research organization at the University of California, Los Angeles. The rate of suits filed over sexual orientation discrimination was about the same as that of suits filed over racial discrimination, the Williams Institute found.

If the Equality Act becomes law, its mere existence would not eliminate all discrimination, but it would certainly deter it, Warbelow says, as that has been the experience in states with similar laws. If discrimination happens, the injured party could file a complaint with the EEOC, which is able to help settle complaints without the parties going to court, she says. And then a last resort would be a lawsuit. With the inclusion of sexual orientation and gender identity in civil rights law, the U.S. attorney general would be able to intervene in equal protection lawsuits involving discrimination on those bases.

The Equality Act has much support from corporate America. There are 164 businesses that have endorsed the legislation as part of the HRC’s Business Coalition for the Equality Act. They represent $3.8 trillion in revenue and 8.7 million employees, and they have operations in all 50 states, with headquarters in 27 states.

"For corporations, this is a common-sense next step," Warbelow says. Many of them already have LGBTQ-inclusive antidiscrimination policies in place. "But they know their employees have to live in the real world," she notes, finding housing and other services. And they're concerned not only about LGBTQ employees, but workers who have LGBTQ children. Nationwide antidiscrimination protections will make a company's workers more comfortable with moving from one state to another, she says. As it is now, corporations "are concerned about the patchwork of state laws that makes it harder to attract top talent," she explains.

Kevin Walling, chief human resources officer at the Hershey Co., explained his company’s support for the legislation in a statement supplied by HRC: “At the Hershey Co., we recognize that our talented employees are our business edge, and that retaining our place as the market leader in our category requires the best talent. To help us achieve our goal of recruiting the nation’s top employees, we know that we must foster a business culture that is welcoming to all, regardless of sexual orientation, or gender, or race, or other status.  By the same token, if our nation is to compete on a global stage, our federal laws must ensure that all employees are treated with the same respect.”

The bill's introduction today came with bipartisan support, and it reportedly has 230 cosponsors in the House of Representatives and 46 in the Senate. Passage in the Democratic-controlled House seems almost assured, while the Republican-majority Senate will likely be more of a challenge, as will getting the signature of the president, Donald Trump.

But the Equality Act's supporters are determined. "Speaker [Nancy] Pelosi has made the Equality Act one of her top priorities," Warbelow says. "The Senate is much more challenging, and we're really going to have to double down. If we can't get it over the finish line, we'll be back in the next session of Congress."

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