Policy Summary: On February 18, 2021 Rep. David Cicilline (D-RI) introduced H.R. 5 in the House of Representatives. The bill is popularly known as the Equality Act and had been introduced in various forms in previous sessions of Congress. The bill seeks to “prohibit discrimination on the basis of sex, gender identity and sexual orientation, and other purposes.” The text of the bill uniquely specifies and amends the Civil Rights Act of 1964 to state that discrimination on the basis of gender identity and sexual orientation are protected categories under that law. In addition to adding these new protected categories to that landmark law the bill also expands coverage for discrimination on the basis of sexual orientation and gender identity to the Equal Credit Opportunity Act, the Jury Selection and Services Act housing and education laws and a number of other federally funded programs. And finally, the bill states specifically that the Religious Freedom Restoration Act (RFRA) of 1993 cannot be used to challenge a provision in the Act and cannot be used as a defense to a claim of unlawful discrimination under the Act.
On February 25, 2021, the House of Representatives voted to pass the bill by a 224 – 206 vote. The bill was then sent to the Senate for a vote in the coming weeks. LEARN MORE
Policy Analysis: The Equality Act that was introduced in 2021 is one of the legislative priorities that President Biden promised during his presidential campaign. While the stated purpose of the bill is straightforward in that it seeks to “prohibit discrimination on the basis of sex, gender identity and sexual orientation” a closer examination of the text of the bill reveals that the bill is not as open – ended as it may seem on the surface. The bill directly targets existing federal laws that may be vulnerable to unexpected interpretations and seeks to get out in front of these gaps in the law in order to provide more clarity on the application of the law in the future.
By directly including gender identity and sexual orientation in the Equality Act, the bill is directly responding to the Bostock v. Clayton County Supreme Court employment discrimination case that was decided last year. That case provided protections to lesbian, gay and transgender persons. Nowhere were gender identity and sexual orientation included in the case. So, in order to prevent those categories of persons being left out, they were specifically mentioned in the Equality Act in order that they not be left out and vulnerable to discrimination claims in a future interpretation of the case that might omit them. The law is so often open to opposing interpretations and this bill clarifies what a future interpretation must include.
While mandating that gender identity and sexual orientation must be included in discrimination claims under the Civil Rights Act of 1964 the bill then expands those protections into a number of areas that were not previously covered. The protections against discrimination on those bases now extend into financial credit, service on juries and “public accommodations” like retail shops and stadiums. This bill seeks more comprehensive coverage against discrimination on the basis of gender identity and sexual orientation and the fact that this bill is national in scope will provide that since twenty – seven (27) states do not currently provide LBGQT anti – discrimination laws.
Finally, the bill anticipates the counter argument from religious supporters that protections against discrimination on the basis of gender identity and sexual orientation violates religious liberty by specifically eliminating the use of the Religious Freedom and Restoration Act (RFRA) of 1993 as a basis to challenge the Act and to use it as a defense when accused of discrimination. That law states that the federal government cannot substantially burden a person’s exercise of religion but the law has come under fire recently. Supporters of religious liberty often cite that law as a way to avoid complying with laws they disagree with, such as laws in support of LGBQT rights. The RFRA did not anticipate this recent situation. The Equality Act handles this by stating specifically that the RFRA can no longer be used as a defense in these kinds of discrimination cases.
There likely is a fight brewing in the Senate (and maybe in the courts down the road) but for now the Equality Act does what it can to include gender identity and sexual orientation as protected categories, expand those protected categories in various areas of social life and across the nation where states have not provided protections for the LGBQT community and in declaring that religious liberty cannot be used to deprive LGBQT persons of basic civil rights. It is now up to the Senate to vote in support of the Equality Act. LEARN MORE, LEARN MORE, LEARN MORE
Engagement Resources:
Human Rights Campaign – non – profit group advocating for Equality For All.
American Civil Liberties Union (ACLU) – non – profit group’s webpage on LGBQT non – discrimination protections.
This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact Rod@USResistnews.org.