The Equality Act Returns

A rainbow Pride flag in front of a trans Pride flag.
The “More Color, More Pride” Flag (photo: Kelly Burkhardt)

On May 17, 2019, Rep. John Lewis, one of the great Civil Rights icons in U.S. history, spoke with eloquence and passion from the floor of the House. “Today is May 17. On May 17, 1954 the Supreme Court ruled on Brown versus Topeka Board of Education. I remember that day,” Lewis said, his voice rising. “I was 17 years old. I thought I would be attending desegregated schools. It never happened for me. Today we have the opportunity to cast this vote and set all of our people free.”

Lewis, a long-time LGBTQ ally, was speaking about the vote for the Equality Act, which passed the House later that day in a bipartisan 236-173 vote. But the bill never went any further. Then-Majority Leader Mitch McConnell refused to even bring it to the floor of the Senate for debate, because Donald Trump had said he would never sign it.

The power shift in Congress and the White House may have changed all that. Both Joe Biden and Kamala Harris pledged in their individual campaigns for president to sign the Equality Act into law in their first 100 days in office. Biden reiterated in an interview with PGN that he would sign the Equality Act in his first 100 days.

LGBTQ people can be discriminated against “because of who they are or whom they love” in 29 states, Sen. Jeff Merkley (D-OR), said in a statement. He introduced the Equality Act last week alongside U.S. Congressman David N. Cicilline, (D-RI). Cicilline is openly gay and introduced the bill in 2019.

“Our nation was founded on the promise that all are created equal and are worthy of dignity and respect, regardless of who they are or whom they love,” House Speaker Nancy Pelosi said in a statement. “With the reintroduction of the Equality Act, Congressional Democrats are making a resounding commitment to this truth: that all Americans must be treated equally under the law, not just in the workplace, but in every place.”

The House is expected to vote on the Equality Act by week’s end. Then it will go to the Senate. The bill still faces strong opposition from most Republicans.

The reintroduction of the Equality Act comes as a new Gallup poll released on Feb. 24 shows a substantial increase in the number of Americans who identify as LGBTQ — an estimated 5.6 percent of Americans, up from 4.5 percent in 2017, the last year polling on the issue was conducted by Gallup, the country’s largest pollster. The poll shows that around 20 million Americans now identify as LGBTQ.

Biden signed an anti-discrimination executive order on Inauguration Day, but the Equality Act has the rule of law and covers a wide range of protections that the executive order does not and cannot.

Biden issued a statement of renewed support for the Equality Act saying, “I urge Congress to swiftly pass this historic legislation. Every person should be treated with dignity and respect, and this bill represents a critical step toward ensuring that America lives up to our foundational values of equality and freedom for all.”

The Equality Act would amend the 1964 Civil Rights Act to explicitly prevent discrimination based on sexual orientation and gender identity. It would also substantially expand the areas to which those discrimination protections apply.

The bill has been introduced multiple times over two decades before it passed the House in 2019.

In June 2020, the U.S. Supreme Court ruling in Bostock v. Clayton County broadened the protections guaranteed by the 1964 Civil Rights Act on the basis of sex to extend to discrimination against lesbian, gay, and transgender Americans.

The Bostock ruling makes the Equality Act both closer to passage and more of a concern for opponents than in 2019. The Equality Act would ban discrimination by businesses against LGBTQ people, thus vitiating discrimination cases brought against flower shops and bakeries that have proliferated in recent years, a key issue for the religious right.

The real-life consequences of anti-LGBTQ discrimination extend far beyond gay and lesbian couples being denied wedding services. Over half of states in the U.S., including Pennsylvania, have no protections for LGBTQ people.

LGBTQ people can be evicted, thrown out of a business or denied a loan because of their sexual orientation or gender identity. The Equality Act would prohibit discrimination against LGBTQ people in many areas including credit, education, employment and federal funding. It also clarifies that the 1994 Religious Freedom Restoration Act, used regularly throughout the Trump administration to implement anti-LGBTQ policy, would not legally allow anti-LGBTQ discrimination.

Sarah Warbelow, legal director at Human Rights Campaign says the Equality Act is “almost a cradle-to-grave type of non-discrimination bill” that “would affect LGBTQ people in almost every area of life.”

In a statement to USA Today, Warbelow said, “The Equality Act certainly would codify the Bostock decision, making it clear that you cannot be discriminated in employment.”

Warbelow added, “And then, where there are no sex non-discrimination laws, such as in most federally funded programs or places of public of accommodation, places you would expect to be able to go and get goods and services without discrimination, it adds sex, sexual orientation and gender identity [protections].”

The Equality Act would change the way current protections for LGBTQ people have had to be implemented. Currently there is a pastiche of municipal and other state-level rights and protections across the country that have no federal component.

There is growing support for the Equality Act nationally. The Business Coalition for the Equality Act, a group of more than 320 major companies that operate in all 50 states and employ more than 12.3 million people, endorsed the legislation, according to the Human Rights Campaign.

Yet opposition remains fierce. Marjorie Taylor Greene, the far-right Georgia representative who was stripped of her committee assignments earlier in February for a host of controversial actions and conspiracy theories, filed amendments on Feb. 23 to try and block the Equality Act as it is currently written.

“I’ve introduced these amendments to the so-called ‘Equality’ Act in order to stop this Democrat attack on girls, churches, and believers,” she said in a statement. Referencing Trump’s “America First” slogan, Greene’s “America First Amendments,” would replace the Equality Act in its entirety. Greene’s bill prevents trans women and girls from participating in women’s sports, exempts churches and other non-profits from the anti-discrimination bill, and would allow people to sue the federal government “if their religious rights are violated” by LGBTQ protections.

Republicans in the House and Senate, including Sen. Mitt Romney (R-UT), have voiced opposition to the Equality Act, asserting it needs stronger protections for people whose religious faiths oppose same-sex marriage and LGBTQ rights.

The need for the bill was clarified by Human Rights Campaign, which said in a statement, “President Biden issued an executive order directing agencies to appropriately interpret the Bostock ruling to apply not just to employment discrimination, but to other areas of law where sex discrimination is prohibited, including education, housing, and health care. However, a future administration may refuse to interpret the law this way, leaving these protections vulnerable.”

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Victoria A. Brownworth is a Pulitzer Prize-nominated award-winning journalist whose work has appeared in The New York Times, the Los Angeles Times, The Philadelphia Inquirer, Baltimore Sun, DAME, The Advocate, Bay Area Reporter and Curve among other publications. She was among the OUT 100 and is the author and editor of more than 20 books, including the Lambda Award-winning Coming Out of Cancer: Writings from the Lesbian Cancer Epidemic and Ordinary Mayhem: A Novel, and the award-winning From Where They Sit: Black Writers Write Black Youth and Too Queer: Essays from a Radical Life.