Congressional Democrats, backed by LGBTQ advocates, are looking to add gay and transgender protections to the 1964 Civil Rights Act — a huge expansion of the seminal law — but the legislation may stall in the Senate because of its axing of religious liberty protections.
The Equality Act has languished in committee the last two Congresses. First introduced in the 1970s by Rep. Ed Koch, the legislation would do the 1964 Civil Rights Act doesn’t: explicitly protect gay, lesbian and transgender individuals from being fired, denied service or public accommodations because of their gender status.
Last week, a hearing organized by the Human Rights Commission and the Congressional LGBT Caucus’ Transgender Task Force felt like the smashing of a bottle against a ship.
“You have the fire lit beneath you. You have the opportunity to make a difference. It would set a standard for equality for everyone,” said J.R. Ford, a parent from Massachusetts, who attended the Jan. 31 hearing, chaired by Rep. Joe Kennedy III, Massachusetts Democrat, and attended by nine other members of Congress. “It sets a precedent.”
But the legislation — which would do away with a religious exemption that held up in the Supreme Court’s decision involving a Christian baker in Colorado — may be its own undoing.
“We think it’s a massive, sweeping and wrongheaded extension of the Employment Non-Discrimination Act by adding in sexual orientation and gender identity and at least 25 areas of law as opposed to just hiring practices,” said David Christensen, vice president for government affairs at the Family Research Council. “We would certainly hope that the Republican majority in the Senate would not pass the Equality Act or its sister proposal, the Fairness for All Act.”
Congress has tried — in smaller ways — to pass legislation before. The Employment Non-Discrimination Act failed in the early years of the Obama administration. It focused on federal employment law. The latest iteration doubles down.
The Equality Act would insert “sexual orientation” and “gender identity” into protections throughout the 1964 Civil Rights Act, ranging from Title VII’s employment language to public accommodations under Title II. The proposed law would include salons, shelters, travel agencies and other businesses to the types of places where discrimination occurred under Jim Crow.
The bill would not require the construction of new bathroom facilities for transgender students. However, it would ensure LGBTQ students are part of a federally protected class.
“This would federalize concerns about wedding vendors or any other vendors that offer a good or service. It’s a big deal,” said Ira Lupu, professor of law emeritus at George Washington University.
The bill has yet to be introduced in the 116th Congress. But past its iterations would have stripped away protections under the Religious Restoration Act, a 1993 piece of legislation signed by President Bill Clinton that has been used to allow for American Indian inmates to practice traditional ceremonies in prisons and for a Colorado baker to refuse service to a same-sex couple.
“This legislation is explicitly anti-religious and would force government to punish people who disagree over sexuality and the role that family and marriage play in our society,” Mr. Christensen said.
George Rutherglen, a law professor at University of Virginia, said federal appeals courts in New York and Chicago have held that employees can’t be fired for being gay. But that’s not the case in the federal court based in Atlanta and other places in the country. The Equality Act is insurance, he said, if the Supreme Court — which could well take up the issue in a coming term — sides in a way progressive don’t like.
“Defenders of this legislation will say, ‘We are taking no position on whether sexual orientation and sexual identity are covered by Title VII. All we are doing is making sure there is a belt-and-suspenders approach,’ if you get the metaphor,” Mr. Rutherglen said.
A spokesman for Rep. David Cicilline, Rhode Island Democrat, confirmed there would be a bill but said there is no timeline yet for its introduction.
Other Democratic sponsors, including offices for Sen. Tammy Baldwin, of Wisconsin, and Sen. Jeff Merkley, of Oregon, declined to provide comment.
The members of Congress gathered last week boasted of the bill’s fate, at least in the House.
“I know we’ll pass the Equality Act in this Congress,” said Rep. Sean Patrick Maloney, New York Democrat. “And we should get a bipartisan vote out of this.”
Many municipal and state-based restrictions already prevent discrimination against LGBTQ individuals. For example, Mr. Lupu said, some state bar associations would prohibit a family law attorney who regularly handles divorce litigation to refuse service to a same-sex couple.
Priya Shah, a parent from Orange County in California, said the private school where she and her husband enrolled their child, who identifies as female, refused to accommodate their daughter’s gender expression. She came home every day and ripped off the boy’s uniform the school insisted the girl wear.
In last week’s hearing, Ms. Shah said she sued the school because she doesn’t want that to happen for other parents.
“Even in California, this [discrimination] happens,” Ms. Shah said. “Something like the Equality Act ensures that those kids are protected.”
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