Polling shows that most Americans support non-discrimination protections for LGBT people. But there is still no federal law directly banning discrimination against LGBT people in the areas of housing, employment, and public accommodations.
The Equality Act would change that.
By expressly listing sexual orientation and gender identity as protected characteristics in existing federal civil rights legislation, it would effectively put an end to current court arguments about whether current bans on sex discrimination apply to LGBT people as well.
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Now that Democrats have a strong chance of regaining a majority in the House of Representatives next week, LGBT advocates say the odds of making headway on the Equality Act are up, too. As the Washington Blade reported, House Minority Leader Nancy Pelosi said in a speech earlier this week that Democrats would give the Equality Act a low bill number—signaling that it’s a “top priority”—if the party gets a majority.
“In a Democratic House, we fully expect the Equality Act would both come to the floor and have the votes to pass,” Human Rights Campaign government affairs director David Stacy told The Daily Beast.
But given current polling in U.S. Senate races—and given the current occupant of the Oval Office—it’s unlikely that the bill would become law within the next two years.
Introduced in both 2015 and 2017 so far, the Equality Act has so far cleared neither congressional body and only garnered the support of a handful of Republicans, like retiring Florida congresswoman Ileana Ros-Lehtinen, whose son is transgender.
But Stacy says groundbreaking civil rights bills often have to be tried and tried again before finally becoming law. The bill would require 60 supporters in the Senate—and, of course, a signature from the President of the United States.
“We know that these things take a long time,” he said. “In the LGBTQ context specifically, the Matthew Shepard And James Byrd Jr. Hate Crimes Prevention Act ended up having 14 separate floor votes between the House and Senate over the course of 12 years before it became law.”
The Equality Act, Stacy hopes, will not require as many attempts as that legislation—which in 2009 added sexual orientation and gender identity to federal hate crimes law—but it helps whenever votes get cast. “Each time you move the bill, it gets easier, so it’s an important milestone to show that we have a majority in the House.”
The urgency of a legislative solution for LGBT discrimination has become much clearer under the Trump administration, which has already accrued a long string of anti-LGBT actions in its first two years, like rolling back transgender protections and establishing a Religious Liberty Task Force within the Department of Justice.
Under the Obama administration, judicial victories for the LGBT community seemingly crescendoed, with the Supreme Court delivering same-sex marriage rights in 2015 and more federal courts affirming that transgender people are protected from discrimination under Title VII and Title IX. Without Democratic control of the Congress, LGBT advocates have focused strongly on litigation as a way to protect rights.
Now that the Supreme Court has a conservative majority, though, the long-term prospects of that approach are not as bright as they used to be. It seems much less likely now than it did before that the Supreme Court will agree that current sex discrimination bans apply to LGBT people.
Shannon Minter, legal director for the National Center for Lesbian Rights, told The Daily Beast that although federal courts are largely ruling in favor of LGBT people even today, “the ultimate success of that strategy for gaining nationwide protection is now much more up in the air because of Trump’s appointments to the U.S. Supreme Court, which is now more conservative than any court in modern history.”
Minter, for one, is disheartened that there haven’t been enough LGBT legislative milestones of late, calling it “concerning that this critical aspect of the LGBT equality movement has met with so little progress in recent years” and arguing that “it is past time for the movement to light a fire under our elected officials.”
With exceptions like the Matthew Shepard Act, federal legislative milestones have indeed eluded LGBT advocates. In 2007, when Democrats effectively controlled both the House and the Senate, the Employment Non-Discrimination Act—a bill focused more narrowly on protecting LGBT people from hiring discrimination—first controversially had gender identity protections stripped from it in an attempt to make the bill more palatable to conservatives but it failed in the Senate anyway.
Since then, a Republican-controlled legislature has ensured that most LGBT rights bills never see the light of day—and LGBT advocates have largely turned to the courts for hard-fought gains.
Asked whether LGBT groups had over-invested in judicial battles, Stacy said, “I wouldn’t say we’ve invested too much in the judiciary; I think we’ve taken an all-of-the above approach.” The judicial strategy worked; the federal legislative one ran into trouble.
Even at the state level, sexual orientation and gender identity have largely been protected in conservative areas in recent years through court rulings, with some exceptions like Utah, which in 2015 passed a limited non-discrimination bill in a compromise with the Church of Jesus Christ of Latter-day Saints.
Currently, according to the Movement Advancement Project, only 20 states and D.C. have legislation banning discrimination on the basis of sexual orientation or gender identity. Twenty-six states have no protection whatsoever—of which some but not all are bound by various LGBT-inclusive federal rulings on the meaning of sex discrimination.
That’s why Minter would like to see efforts to pass the federal Equality Act accompanied by stronger pushes at the state level. “In the meantime,” he told The Daily Beast, “there is an equally urgent need for state law protections, which are still non-existent in more than half the states.”
In some of those states, Stacy noted, the LGBT community effectively has “no prospect of a state legislature acting in the near-term”—which is why they may only receive protections when federal protections are eventually enacted.
Stacy gave The Daily Beast a realistic assessment of the Equality Act’s potential. Even with enormous corporate and public support—and 241 co-sponsors across both chambers of Congress—it would be challenging to enact the legislation soon.
“I think our goal for next year would be to move it through the House and then assess where we are in the Senate,” he told The Daily Beast, adding, “I think the prospects look good in the long run, and I think the prospects potentially look pretty good for taking the first important steps on this bill next year.”
