Tagged: Civil Rights Act of 1964

The Fight for LGBTQ+ Justice and the Equality Act

May 14th, 2020 in Analysis, Federal Legislation, State Legislation

Throughout American history, the LGBTQ+ community has continually faced unconscionable levels of harassment, discrimination, and vitriol; Congress cannot waste another session without passing the Equality Act into law.

Discrimination against the community is pervasive; LGBTQ+ Americans have reported harm to their mental health (69%), physical well-being and safety (45%), school environment (39%), work environment (53%), and relationships with their neighbors and local communities (57%).  More than half of LGBTQ+ Americans have faced discrimination by healthcare providers.  In surveys, LGBTQ+ Americans admit to using vague language about relationships (42%), refusing to talk about their partner (37%), hiding affiliations to LGBTQ+ groups (15%) and avoiding discussion of LGBTQ+ issues altogether (31%) out of fears of facing harassment and other damaging bigotry.  Additionally, LGBTQ+ people have often changed the way they dress (15%), changed the way they talk (15%), cut important people out of their lives (16%), and moved away from their families (17%) because of the harmful consequences of discrimination.

Furthermore, transgender Americans face a disproportionate share of violence and discrimination – even compared to other members of the LGBTQ+ community.  33% of trans Americans have been denied equal services or physically attacked when visiting a place of public accommodation (like a hotel, restaurant, or government office).  27% of trans workers have been fired, not hired, or denied a promotion because of their gender.  Additionally, 25% have been refused treatment or physically assaulted by their primary physician, health clinic, or hospital due to their gender identity – despite new Affordable Care Act regulations that were written with the specific intention to prohibit such discrimination against trans Americans by federally-funded providers.  Members of the trans community have reported avoiding public transportation (11%), stores and restaurants (26%), and going to the doctor (24%) for fears of facing abuse and violence.

Queer people face high rates of discrimination and violence because of state and federal inaction.  In twenty-nine states, LGBTQ+ Americans can be fired from a job, evicted from their home, or denied a line of credit because their employer, landlord, or bank disapproves of their sexual orientation or gender identity.  In fourteen states, there is no ban on LGBTQ+ discrimination in schools.  Clear and universal legal protections for LGBTQ+ Americans are desperately needed if our country is ever going to heal the evils that have been done for generations against our vulnerable population.

Therefore, Congress must pass a bold LGBTQ+ civil rights bill – such as the Equality Act sponsored by Representative David Cicilline (D-RI).  This legislation would amend the Civil Rights Act of 1964 to protect Americans from discrimination based on “sex, sexual orientation, gender identity, or pregnancy, childbirth, or a related medical condition of an individual, as well as because of sex-based stereotypes” in federal funding, education, housing, employment, credit access, jury service, and public accommodations.  It covers claims based on: (1) association with another member of a protected class; or (2) a perception or belief, even if inaccurate, that someone is a member of that class.  The Act would expand “public accommodations” to include “any establishment that provides a good, service, program,…health care, accounting, or legal services,” or “any…transportation service.”  Furthermore, the Act prohibits denying individuals access to a “shared facility” (restroom, locker room, dressing room, etc.) in accordance with their gender identity.  Finally, the bill allows the Justice Department to bring these claims in federal court, and prohibits anyone who violates the Equality Act from asserting protection under the Religious Freedom Restoration Act of 1993 (RFRA) as a valid defense to discriminating against LGBTQ+ Americans.

The Equality Act would be a crucial step forward for America. First, the bill expands protections under the Civil Rights Act of 1964 for all protected classes under the law, not just the LGBTQ+ community.  For example, the bill would extend the Civil Rights Act’s current ban on discrimination based on sex to also cover public accommodations, state and local government services, and federal funding.  Second, this bill would enact into federal law stronger anti-discrimination protections for the LGBTQ+ community than even the most liberal possible Supreme Court decisions could provide through Bostock v. Clayton County, Georgia (whether discrimination against an employee because of sexual orientation constitutes prohibited employment discrimination “because of . . . sex” within the meaning of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2) or R.G. & G.R. Harris Funeral Homes Inc. (whether Title VII prohibits discrimination against transgender people based on (1) their transgender status or (2) sex stereotyping under Price Waterhouse v. Hopkins) this summer.

Finally, public opinion strongly supports passage of federal LGBTQ+ protections.  79% of Democrats, 56% of Republicans, and 70% of Independents polled in 2018 supported passage of non-discrimination laws to protect members of the LGBTQ+ community.  This support includes a majority in every age group – from millennials to the elderly – and even includes a majority of white evangelical Protestants, a group that typically has conservative positions on social issues.  Outside of polls, there are also a number of powerful interest groups supporting passage of the Equality Act.  Such groups include civil rights organizations (ACLU, Anti-Defamation League, NAACP, AARP), women’s rights groups (NOW, CLUW), corporations (Visa, Mastercard, Apple, Google, Netflix, Microsoft, Amazon, eBay, IBM, Facebook, Airbnb, Twitter, Intel, American Airlines), medical and professional organizations (AMA, APA, ABA, National PTA),  unions (CWA, SEIU, AFSCME, AFT), celebrities (Karamo Brown, Nyle DiMarco, Adam Rippon, Jesse Tyler Ferguson, Taylor Swift), and religious organizations (Episcopal Church, United Methodist Church, United Church of Christ, Evangelical Lutheran Church in America, More Light Presbyterians, United Synagogue of Conservative Judaism, Muslims for Progressive Values, Hindu American Foundation, Unitarian Universalist Association).
The Equality Act is certainly not perfect.  An ideal bill would attack not just de jure LGBTQ+ discrimination, but also de facto discrimination caused by implicit biases and socioeconomic disparities.  Such a law dedicated to establishing LGBTQ+ justice might: 1) specifically include HIV/AIDS status as a class of protected individuals covered by the Equality Act; 2) expand federal funding for Medicaid, public health clinics, mental health coverage, and combatting youth homelessness; 3) ensure all homeless shelters and rehabilitation centers receiving federal funds are LGBTQ+ affirming; 4) bolster protections against hate crimes, gun violence, and the targeting of LGBTQ+ populations by law enforcement; 5) require all private and public insurance plans to cover HIV prevention; 6) require school districts that receive federal funds to adopt sex education programs that are comprehensive and LGBTQ+ inclusive; 7) institute codes of conduct prohibiting bullying and harassment in our public schools; and 8) prohibit LGBTQ+ conversion therapy.  However, under the current limitations of today’s Congress, the Equality Act seems a good first step towards building a broader movement for LGBTQ+ justice over the next decade.

Although polling shows that most Americans do not think “religious objections should be a reason to deny service to an LGBTQ person” in business (57%), healthcare (64%) or employment (62%), a recent Reuters poll found that only 23% of Americans know that federal LGBTQ+ protections haven’t been enacted yet.  Given the high popularity of the Equality Act, and the even higher need for its invaluable protections, Congress must finally pass this vital civil rights bill into law.  The lives of LGBTQ+ men, women, and children across the United States are at stake.

Samuel Shepard graduated from Boston University School of Law in May 2020.

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