The Equality Act

On February 24, 2021, the U.S. House of Representatives passed the Equality Act, a bill that would ban discrimination on the basis of sex, sexual orientation, and gender identity.

This article provides a short overview of the Equality Act and how it could change the future for LGBTQ+ Americans.

History of the Equality Act

On March 13, 2019, the House introduced the Equality Act to provide federal protections for the LGBTQ+ community and women. The bill had been introduced by lawmakers twice prior and died in committee both times before finally passing in the House in 2019 with a 236 to 173 vote, with 8 Republican votes in favor. However, a 2021 version of the bill was written after the landmark 2020 Bostock v. Clayton County U.S. Supreme Court ruling.

On June 15, 2020, the U.S. Supreme Court found in Bostock that employment discrimination based on sexual orientation or gender identity is a type of discrimination on the basis of sex under Title VII of the Civil Rights Act of 1964 and is therefore prohibited.

Following Bostock, President Biden signed Executive Order 13988 on his first day in office on January 20, 2021. The order directed all federal agencies to review existing laws prohibiting discrimination on the basis of sex to determine whether they prohibit discrimination on the basis of sexual orientation and/or gender identity under sex discrimination.

On February 18, 2021, the Equality Act was reintroduced in the House with the addition of the key points of Bostock as well as an expansion of those rights for LGBTQ+ people. On February 25, 2021, the Equality Act passed in the House with a close vote of 224 to 206, with only 3 Republicans voting in favor.

What Is the Equality Act?

The Equality Act is a landmark piece of legislation that would provide civil rights protections to LGBTQ+ people across the nation.

Among other things, the Equality Act would:

• Explicitly prohibit discrimination based on sexual orientation and gender identity by amending the 1964 Civil Rights Act

• Expand civil rights protections to cover not only employment but also public accommodations (retail stores, transportation providers, etc.) and federally funded programs

• Take away religious exceptions and licenses to discriminate under the Religious Freedom Restoration Act

Because Bostock is case law, there is a possibility it could be reversed by future U.S. Supreme Court decisions. By codifying the Bostock interpretation, the Equality Act would ensure that these rights were cemented into law.

The Equality Act would explicitly codify the Bostock interpretation by clarifying that non-discrimination protections on the basis of sex apply to discrimination on the basis of sexual orientation and gender identity, giving equal protection to LGBTQ+ people under federal civil rights laws.

Why Is the Equality Act Important?

Currently, most states do not have laws prohibiting discrimination against LGBTQ+ people. This means that LGBTQ+ people can currently be discriminated against in many areas of life, including:

• Housing

• Employment

• Public spaces

• Health care

• Federally funded programs

• Education

• Credit

• Jury service

Transgender Americans, specifically transgender people of color, have experienced discrimination in these areas at significantly higher rates than cisgender white LGBTQ+ Americans have.

By providing a comprehensive federal non-discrimination law, the gaps left by the states will be filled, and LGBTQ+ people will have protection against discrimination no matter where they live in the U.S.

The Equality Act would:

• Amend the Fair Housing Act to provide explicit protections for LGBTQ+ people on the basis of sexual orientation and gender identity

• Codify the Bostock interpretation that prohibits the discrimination of LGBTQ+ employees because of their sexual orientation or gender identity

• Add protections for LGBTQ+ people in public spaces (e.g., stores, transportation, health care providers, etc.)

• Amend Title VI of the Civil Rights Act of 1964 to include protections for LGBTQ+ people in federally funded programs (e.g., schools, adoption agencies, law enforcement, etc.) as well as provide protections against bullying and harassment faced by LGBTQ+ students

• Add sexual orientation and gender identity as protected characteristics under the Equal Credit Opportunity Act as stated in the Consumer Finance Protection Bureau’s interpretive rule to prevent LGBTQ+ people from being denied loans or credit cards due to their sexual orientation or gender identity

• Amend the Jury Selection and Service Act to include sexual orientation and gender identity under the definition of sex discrimination to prohibit attorneys from objecting to prospective jurors if they are LGBTQ+

Religious Liberty

There are many opponents to the Equality Act based on the issue of religious liberty alone. Various religious groups argue that the Equality Act would force business owners to choose between keeping their businesses open or following their religious beliefs.

However, the Equality Act would provide new protections to religious groups by prohibiting discrimination based on religion in a broader range of public spaces. For example, stores would be prohibited from refusing service to a person based on their religious beliefs.

The Equality Act also maintains existing religious liberty rights for religious organizations, such as the right to favor people based on their religion.

The Equality Act simply states that the Religious Freedom Restoration Act cannot be used as a defense when discriminating against LGBTQ+ people based on their sexual orientation or gender identity as well as against religious people based on their religious beliefs.

What’s Next?

The Equality Act was received in the Senate on March 1, 2021, and is awaiting consideration. Given the current composition of the Senate, it is unlikely that the Equality Act will receive further action in Congress anytime soon. However, there is still hope for passing the Equality Act in the future.

If Democrats regain control of the Senate in the next election, there is a strong likelihood of the Equality Act becoming law.