Equality Act - 5

SUMMARY: This bill expands the list of protected classes of individuals against discrimination or segregation to include discrimination based on sex, sexual orientation and gender identity. It also expands the definition of public accommodations to include a broader group of establishments that are covered under federal civil rights laws.

    Specifically, the measure prohibits discrimination based on sex, sexual orientation, and gender identity in areas including public accommodations and facilities, education, federal funding, employment, housing, credit and the jury system.

    It also expands the definition of public accommodation to include "any establishment that provides a good, service, or program" specifically including stores, shopping centers, online retailers, salons, banks, gas station, food bank, care centers, shelters, travel agencies or funeral parlors. It also includes establishments that provide health care, accounting or legal services.

    The measure prohibits discrimination in areas dealing with transportation, including any train, bus, car, taxi or airline service.

    Under the bill, the Justice Department is allowed to intervene in equal protection actions in federal court on account of sexual orientation or gender identity.

    The bill specifically defines "gender identity" as gender-related identity, appearance, mannerisms or other gender-related characteristics of an individual, regardless of their sex at birth.

BACKGROUND: The Judiciary Committee reported the bill by a 22-10 vote (no written report was available as of press time).

    Current federal law provides various civil rights protections to individuals that bar discrimination. Although these laws share similar features, the type of discrimination they prohibit and the circumstances under which they operate vary from statute to statute.

    Broadly, these laws prohibit discrimination against a select group of protected categories, including, but not limited to, race, color, national origin, sex, religion, age and disability. However, sexual orientation and gender identity discrimination have never been expressly prohibited by federal statute, although some states do prohibit such discrimination against lesbian, gay, bisexual, transgender and questioning and/or queer (LGBTQ) persons.

    In 2015, the Supreme Court required states to issue marriage licenses to same-sex couples and to recognize same-sex marriages that were legally formed in other states. The court's decision relied on the Fourteenth Amendment's equal protection and due process guarantees. Under the Fourteenth Amendment's Equal Protection Clause, state action that classifies groups of individuals may be subject to heightened levels of judicial scrutiny, depending on the type of classification involved or whether the classification interferes with a fundamental right. Additionally, under the Fourteenth Amendment's substantive due process guarantees, state action that infringes upon a fundamental right — such as the right to marry — is subject to a high level of judicial scrutiny.

    Though the Supreme Court decision resolved the question of whether state same-sex marriage bans are unconstitutional, it raised a number of other questions, including any broader impact on the rights of gay individuals; the proper level of judicial scrutiny applicable to classifications based on sexual orientation; the court's approach to recognizing fundamental rights moving forward; and the proper level of judicial scrutiny applicable to governmental action interfering with fundamental rights.

    Subsequently, in 2018 the Supreme Court in a 7-2 decision ruled in favor of a Colorado baker who refused to bake a cake for a homosexual couple. That decision, however, was narrowly written and focused on the state's civil rights commission "unfair treatment" of the cakeshop owner. In its ruling, the court said the commission's state's interest in banning discrimination "could have been weighed against Phillips' sincere religious objections in a way consistent with the requisite religious neutrality that must be strictly observed."

    In 2018, the Trump administration issued a directive through the Labor Department that permits federal contractors to assert their right to a religious exemption from LGBTQ discrimination charges. Although it does not overturn Obama-administration protections for LGBTQ federal contractors, the directive does expand the circumstances under which these contractors can claim they have a religious exemption when terminating or discriminating against LGBTQ individuals.

Member Concerns

    Supporters of the bill, mostly Democrats, say it goes a long way to end the injustices and discrimination faced by LGBTQ people, including families being denied medical care and individuals being fired simply for being transgendered. The measure, they say, continues the expansion of protections for marginalized communities to ensure that everyone can fully participate in key areas of life, and to provide them recourse in the face of discrimination. Courts have long been able to balance the government's compelling interest in eradicating discrimination and supporting religious liberty, and the bill does not force people of faith to violate their beliefs. They argue that its time for the federal government to recognize that all forms of discrimination are wrong and that its past time that Congress moves forward with commonsense protections that simply build on existing statutes.

    Opponents of the bill, mostly Republicans, say the bill is a misguided attempt to privilege the rights of a few over the vast majority of Americans. The measure is likely to lead to unintended consequences that hurt parents, women, people of faith, businesses and charities. They say that by giving a man who identifies as a woman access to protected spaces, the measure could force them to share their locker rooms or a women's only shelter with any biological male who identifies as a woman. Moreover, they say, the bill would force people of faith to shut down their services or violate their conscience if they choose not to serve homosexual couples. They say the bill undermines fundamental American rights in both religion and science, and actually put children at risk by medicalizing them in harmful and permanent ways.

Findings

    The bill includes a number of findings including that individuals who are LGBTQ have been subjected to a history of "persistent, widespread, and pervasive discrimination" by private and government actors and that a "comprehensive national solution" is required to address these types of discrimination.

    It also says that LGBTQ people and women face widespread discrimination in employment and various services, which is "particularly troubling and inappropriate" for federal programs and inconsistent with the equal protection clause of the U.S. constitution.

CBO Cost Estimate

    As of press time, the Congressional Budget Office had not released a cost estimate for the bill.