By Steve Kilar, July 2019 Issue.
In May, the U.S. House of Representatives passed the Equality Act, landmark legislation that has the potential to modernize our federal civil rights laws by explicitly making discrimination based on sexual orientation and gender identity unlawful nationwide.
The bill’s passage, by a margin of 236 to 173, was a huge victory. It was the first time that an LGBTQ rights bill of this magnitude made it through either the U.S. House or Senate.
Polling has for years shown that there is majority support among Americans for nondiscrimination protections for LGBTQ people. The passage of the Equality Act demonstrates that support among voters for LGBTQ equality can translate into support among politicians. Even eight Republicans — from Indiana, Florida, Texas, Oregon, New York, and Pennsylvania — voted in favor of the Equality Act.
Public Religion Research Institute, a nonprofit, nonpartisan organization that produces policy research related to religion and culture in the U.S., recently released 2018 survey results about LGBTQ equality.
“Nearly seven in 10 (69%) Americans favor laws that would protect LGBT people from discrimination in jobs, public accommodations, and housing,” the researchers stated. “Support for these protections has remained steady over the past few years, with around seven in 10 Americans reporting that they favor nondiscrimination provisions for LGBT people in 2017 (70%), 2016 (72%), and 2015 (71%).”
The researchers found there’s broad support for a law like the Equality Act, including majority support within all major religious denominations, racial groups and states, and across the political spectrum.
As ACLU lobbyists put it in a letter of support for the Equality Act that was sent to members of Congress, the bill would “provide LGBTQ people with consistent, explicit, and nationwide protections across all of the key areas of daily life, including employment, housing, and access to public spaces and services.”
Right now, LGBTQ people in some places are protected from discrimination by a patchwork of state and local laws. Arizona still does not protect LGBTQ people from discrimination statewide, although six municipalities (Phoenix, Tempe, Tucson, Flagstaff, Sedona, and Winslow) include sexual orientation and gender identity in their nondiscrimination ordinances.
The Equality Act would supplement this patchwork, creating stability across the country for LGBTQ people and giving businesses that operate across state lines a better understanding of their potential liability for discrimination. In addition, the Equality Act includes important updates to federal civil rights laws that have nothing to with sexual orientation or gender identity.
Here are some of the ways the Equality Act would improve our federal civil rights laws. Many of the changes would benefit everyone, not only LGBTQ people.
The Equality Act would prohibit housing and employment discrimination based on sexual orientation and gender identity. Some courts have determined sexual orientation and gender identity discrimination are forms of sex discrimination, which is already prohibited by federal law in the housing and employment contexts. But the U.S. Supreme Court is considering LGBTQ employment cases during its next term and could come to the opposite conclusion. For that reason, it would be best to have an LGBTQ-inclusive definition of sex discrimination written into the housing and employment civil rights statutes.
The Equality Act would prohibit sex discrimination, including sexual orientation and gender identity discrimination, in public accommodations. Right now, federal law only prohibits public accommodations from discriminating because of race, color, religion or national origin, so this update would provide new discrimination protection for everyone.
The Equality Act would expand the types of businesses considered public accommodations. Under current federal law, public accommodations include hotels and motels, restaurants, gas stations, and entertainment venues, like movie theatres and sports stadiums. The Equality Act would make this list of businesses longer by including “any establishment that provides a good, service, or program” in either a brick-and-mortar setting or online. Transportation providers, retailers, salons, food banks, shelters, and funeral parlors, as well as health care, accounting, and legal services, are all among the types of businesses that would be newly identified as public accommodations. This expanded definition would be helpful to everyone and would clearly prohibit the common forms of discriminatory harassment that have come to be known as “shopping while black” and “flying while brown.”
The Equality Act would also make it clear that sex discrimination, including sexual orientation and gender identity discrimination, is prohibited by credit providers, public schools and other public services, and federally funded programs. Excluding LGBTQ people from jury service because of their sexual orientation or gender identity would also be banned.
The Equality Act would also make plain that a federal law protecting religious freedom, the Religious Freedom Restoration Act, is not a giant loophole for religious beliefs to be used as a license to discriminate. Again, this clarification benefits everyone who might face discrimination, not just LGBTQ people.
It seems unlikely the Equality Act will gain traction in the Republican-controlled Senate. But because the strength of our civil rights often depends on our elected officials, we should still know where our senators stand on the bill so that we’re informed next time we’re asked to cast a ballot in their favor.
Sen. Kyrsten Sinema is a co-sponsor of the Equality Act. Sen. Martha McSally is not, and her office did not respond to an inquiry about her position on the bill.
Mark Kelly, who is challenging McSally in 2020, did reply though.
“No one should be subject to discrimination in the workplace or elsewhere because of who they are,” Kelly said. “I support the Equality Act to ensure that all LGBTQ Arizonans and Americans have equal protections and the opportunity to earn a living and raise a family without fear of discrimination.”