The first Equality Act bill, which also proposed to amend the Civil Rights Act but in more limited ways, was introduced for 20 years, starting in 1974, without success. The Employment Non-Discrimination Act (ENDA), to enact separate, employment-only protections for LGBTQ people, was introduced from 1994 to 2013 without passing. The current Equality Act was first introduced in 2015. The House of Representatives held two hearings and passed it in 2019 and in 2021. The Senate Judiciary Committee heard testimony on the bill in March 2021. As of this writing, it awaits a Senate Committee vote and then floor action. Lambda Legal has supported the bill from its inception, and this author had the privilege of participating in drafting it and submitting supporting testimony for each hearing.
The Equality Act Is Urgently Needed
It is difficult to overstate the need to establish broad, effective protections against the discrimination LGBTQ people still face throughout their daily lives in all corners of the United States. Lambda Legal operates a legal Help Desk, through which we respond to people seeking assistance regarding discrimination related to sexual orientation, gender identity, and HIV status. Between January 2013 and March 2022, we received more than 14,500 requests concerning areas covered by the Equality Act. They came from every state, the District of Columbia, and Puerto Rico, confirming the magnitude of the discrimination problem.
Our testimony drew from these records and presented scores of representative examples of the discrimination LGBTQ people experience in myriad contexts, specifically including state and local government contexts (significant for a federal bill to abrogate state sovereign immunity). All three versions of the testimony are available on the Lambda Legal website as well as in the Congressional Record.
In addition to discrimination in areas covered by the Equality Act, the Help Desk records reveal elevated rates of violence against LGBTQ people and that fully one-third of callers reported income of less than $20,000 per year. These data are consistent with authoritative research, which now routinely finds disproportionate poverty affecting LGBTQ people and further elevated rates of violence affecting LGBTQ people of color. Because discrimination is among the key causes of poverty, these disparities reinforce the need for stronger nondiscrimination protections.
Our testimony aimed to give Congress a deeper understanding of who LGBTQ people are and of the denials of service, loss of jobs and homes, and other discrimination problems—ranging from indignity to violence—that confront them when simply trying to make it through the day. Our communities need the Senate to join the House and establish a firmer national policy against this scourge. Doing so will both send a deterrent message that this behavior must stop and provide fuller remedies for when that message is ignored.
The Equality Act Uses Familiar, Well-Settled Legal Framing
The Equality Act updates our existing federal civil rights laws to codify the many court decisions and agency actions before and since Bostock, and to fill in the glaring gaps due to Congress’s failure in 1964 to include protection against sex discrimination in its then-new laws governing public accommodations and federally funded programs. It also aims to avoid the injustices that result when laws apply differential standards to distinct populations that encounter the same or similar problems.
History proves that separate, lesser protections—such as ENDA—do not deliver equality. LGBTQ people lived this in California, for example, where the protection against sexual orientation discrimination in employment first was included in the Labor Code rather than the Fair Employment and Housing Act. It took nearly a decade of protracted litigation and frustrated claims before the unjust separation was corrected.
In addition, taking a different path from the expanded religious exemption in ENDA, the Equality Act also uses the existing civil rights framework to reinforce that the religious accommodations in these federal statutes are time-tested, appropriate, and should not be expanded simply because it is LGBTQ people who seek equal opportunity to participate in public life. Lastly but perhaps most compellingly, the Equality Act protects against the nightmares for LGBTQ people of color and those of minority religious faith of having to prove one’s case using inconsistent legal standards after encountering discrimination based on multiple characteristics.
The Equality Act Maintains the Respectful Relationship Between Equality and Religious Liberty
Some who oppose the Equality Act warn that it threatens religious organizations. This fear is misplaced. The bill simply honors the half-century-old principle that public spaces and publicly funded services should be equally available to everyone, free of discrimination, despite anyone’s beliefs about who should be treated as “less than” because of who they are or who they love. The bill is in harmony with religious liberty for at least the following five reasons.
1. Taxpayer Dollars Should Not Subsidize Discrimination, Regardless of Motive.
Alongside the statute forbidding discrimination in federally funded programs for more than half a century, presidential executive orders governing federal contracting and grantmaking dating even earlier have required that public programs underwritten with public monies must not enable discrimination. This history matters. Most faith-based agencies today would never claim a religious right to discriminate based on race in a federally funded program. But this contemporary clarity about racism owes a debt to public dollars that came with nondiscrimination strings. Businesses and private agencies made those bargains voluntarily. Congress then expanded the invitation to faith-based agencies, building nondiscrimination into the Charitable Choice Act (see, e.g., 42 U.S.C. Sec. 604a) in fealty to both a vision of welcoming caregivers and the Establishment Clause. Receipt of desirable public funds has continued to require a promise to serve all “strangers” equally, without discrimination based on religious belief.
Religious motives generally have not excused otherwise unlawful discrimination in public accommodations either. In Masterpiece Cakeshop v. Colorado Civil Rights Commission, for example, the Supreme Court observed that, while “religious and philosophical objections [to same-sex couples marrying] are protected, it is a general rule that such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.” 138 S. Ct. 1719, 1727 (2018). The Masterpiece Court then cited Newman v. Piggie Park Enterprises, 390 U.S. 400 (1968), which not only rejected the religious defense offered by a white restaurant owner whose beliefs called for racial segregation, but also deemed that defense to a Black patron’s discrimination claim “patently frivolous.”
Piggie Park’s clarity and forcefulness might be expected today, given the consensus against race discrimination that has evolved since then. But the Civil Rights Act was still new in 1968. And despite contemporary denialism, sincere religious justifications for race discrimination were not rare historically. (See generally Anthea Butler, White Evangelical Racism: The Politics of Morality in America (2021) (documenting how white evangelicals have used scripture to defend slavery, then racial segregation, and opposition to civil rights); Robert P. Jones, White Too Long: The Legacy of White Supremacy in American Christianity (2020) (unearthing the long-repressed history of the relationship between Christianity and white supremacy in America); Max Perry Mueller, Race and the Making of the Mormon People (2017).) By citing Piggie Park, the Masterpiece Court confirmed that religious beliefs do not excuse unlawful discrimination whether based on race or sexual orientation.
2. RFRA Does Not Excuse Civil Rights Violations.
Some opponents of the Equality Act claim it creates new threats to religious freedom by precluding defenses based on the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq. (RFRA). They are mistaken, and those who share this concern need not worry.
First, RFRA was enacted in 1993 with strong, bipartisan support because it was to be a shield for minority faiths against unjustified government action, not a sword for private parties to use against each other despite civil rights laws. The Congressional Record confirms this. Sen. Rep. No. 111, 103d Cong., 1st Sess. (1993) at 12; H.R. Rep. No. 103-88, at 9 (1993) (“[n]othing in this bill shall be construed as affecting Title VII of the Civil Rights Act of 1964.”).
Even if RFRA could be invoked against federal civil rights claims, such defenses would fail because the government has a compelling interest in preventing discrimination. More specifically, because discrimination based on sexual orientation or gender identity is sex discrimination (Bostock), the Equality Act falls squarely within the Supreme Court’s compelling interest precedents.
The examples in our congressional testimony confirm the soundness of the doctrine that the interest in protecting persons from sex discrimination in all its forms is compelling. The harms the Equality Act addresses include injuries to mental and physical health, financial security, civic participation, freedom of movement, personal dignity, and physical safety. These harms reduce opportunities for those impacted by discrimination directly and affect indirectly those with similar characteristics. Discrimination also harms society by limiting the careers of talented employees; undermining workforce productivity; causing young people to leave school prematurely and experience homelessness and negative health impacts; and increasing the vulnerability of those in nursing homes, rehabilitation facilities, addiction recovery programs, nutrition support and emergency services, and the many health and human services programs supported with federal funding.
The Equality Act also furthers this compelling interest in the least restrictive way because only forbidding discrimination prevents these harms of discrimination. The Supreme Court affirmed this decades ago, observing that “the fundamental object” of the Civil Rights Act was “to vindicate ‘the deprivation of personal dignity that surely accompanies denials of equal access to public establishments.’” Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 250 (1964).
3. RFRA Does Not Excuse Private Discrimination.
Some object that the Equality Act wrongfully deprives faith-based agencies of RFRA defenses against discrimination claims brought by members of the public. But RFRA says, “A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government.” 42 U.S.C. § 2000bb-1(c) (emphasis added). Because RFRA does not apply in disputes among private parties, the Equality Act does not void any rights faith-based agencies have under that statute to discriminate against LGBTQ people, women, or anyone else.
4. The Equality Act Does Not Turn Houses of Worship into Public Accommodations.
The Equality Act lists the types of commercial enterprises and public agencies that would be considered public accommodations by modernizing the Civil Rights Act’s coverage to resemble that of the Americans with Disabilities Act (ADA). Like the ADA, the bill covers retail outlets, transportation, banking and other financial services, and social service agencies that choose to serve the general public. The similar laws of many states and the ADA itself have not stripped houses of worship of their First Amendment protections. There has been no surge of liability for churches or clergy from public accommodations laws.
5. The Equality Act Will Not End Sex-Separated Facilities and Programs, Especially Not in Religious Spaces.
Testimony against the Equality Act warned it would outlaw sex-segregated spaces in faith-based settings, including religious services. Such concerns are baseless. The many state laws banning sex discrimination in public accommodations have not shut down religious traditions of gender separation in houses of worship and religious societies. The First Amendment’s protections of those spaces are alive and well, and rightly so. Moreover, the federal and state laws requiring equal treatment regardless of sex have not even ended separate facilities for women and for men in secular settings. Just like the state laws protecting LGBTQ people in about half the states, the Equality Act simply requires that everyone, including transgender people, be recognized according to their gender, not an abolition of gender distinctions.
Despite the concerns some express about how the Equality Act might affect religious liberties, the bill is not a danger. It applies familiar standards and will not destabilize the relationship between equality rights and religious freedom. Instead, our settled rights to free exercise of our own religion and freedom from the religious beliefs of others will continue to coexist with our common rights to equal treatment in public life.
For those of you who thought LGBTQ people achieved equality and safety when the Supreme Court recognized our equal freedom to marry, I encourage you to consider the scores of snapshots in our testimony of rampant, harmful discrimination against this small minority population, and how the lack of a fully inclusive national equality policy contributes. Discrimination hits hardest those already most vulnerable. It’s past time for equal justice under law.