LGBTQ EQUALITY THE EQUALITY ACT OF 2017: GROUNDBREAKING PROTECTIONS AGAINST SEX DISCRIMINATION

CAITLIN LOWELL & EMILY MARTIN

While the Supreme Court’s groundbreaking marriage decision expanded protections for LGBTQ people in 2015, there is still much to be done to ensure equal treatment under the law. Federal law and the majority of states lack explicit non-discrimination protections for LGBTQ people at work, at school, and elsewhere, leaving them vulnerable to discrimination. The Equality Act would amend the Civil Rights Act of 1964 and other key federal nondiscrimination laws to provide clear, explicit protection against discrimination based on sexual orientation and gender identity in employment, housing, credit, federally funded programs (including education), and federal jury service. It would make clear that these types of discrimination are forms of sex discrimination and unlawful. The protections the Equality Act would provide are vital for LGBTQ women. Over one-third of transgender women report losing a job because of their gender identity or expression,1 and studies have found that lesbian, bisexual, and queer women are 30% less likely to receive invitations to interview for jobs than their straight counterparts.2 Transgender women of color experience pervasive housing discrimination - with 31% of Black transgender women and 27% of Native transgender women reporting being denied a home or apartment in the past year because they were transgender.3 The Equality Act would also amend the Civil Rights Act of 1964 to close longstanding gaps in federal law and for the first time prohibit discrimination on the basis of sex in public spaces and services and in all federally-funded activities, providing important new legal protections for women. Creating explicit federal protections for LGBTQ people While the Supreme Court has not yet addressed whether discrimination on the basis of sexual orientation or gender identity is an illegal form of sex discrimination, the Equal Employment Opportunity Commission (EEOC) and an increasing number of courts have found this to be the case. But no federal law explicitly protects LGBTQ people from discrimination, leaving many employers, schools, landlords, and others without a clear understanding of the legal protections for LGBTQ people. There are also currently no protections at all on the federal level on the basis of sexual orientation and gender identity when it comes to public accommodations and many federally funded programs, because there are no federal sex discrimination protections in these areas. The Equality Act would modernize existing civil rights laws by providing explicit and consistent nondiscrimination protections on the basis of sexual orientation and gender identity.

The Equality Act provides protections for LGBTQ people in the following seven areas: • Employment: The Equality Act would explicitly prohibit discrimination on the basis of sexual orientation and gender identity in employment and would make it clear that discrimination based on “sex stereotyping” is a prohibited form of sex discrimination in employment. LGBTQ people would be treated the same as other protected classes, so existing exemptions—like exemptions for businesses with fewer than 15 employees—would still apply. • Federally funded programs and activities (including education): Any program that receives federal funds would be prohibited from discriminating on the basis of sexual orientation or gender identity or on the basis of sex stereotypes. This provision would protect LGBTQ people from discrimination by institutions that receive federal funds – including schools, hospitals, domestic violence shelters, and police departments.

Housing: The Equality Act provides explicit protections for LGBTQ people against housing discrimination. • Public Spaces and Services: LGBTQ people would be protected from discrimination in “public accommodations,” including stores, restaurants, hotels, transportation, and providers of health care services. • Credit: The Equality Act would explicitly prohibit discrimination on the basis of sexual orientation and gender identity in credit, financing, and lending. • Federal Jury Service: The Equality Act would explicitly prohibit discrimination against LGBTQ people in selecting federal juries. New sex discrimination protections The Equality Act amends Title II and Title VI of the Civil Rights Act of 1964, to prohibit discrimination on the basis of sex in public spaces and services and in all federally funded programs and activities for the first time. These prohibitions will help ensure that women are treated equally in all aspects of their lives. In Public Spaces and Services The Equality Act closes a longstanding gap in civil rights law to provide federal protections against sex discrimination in public places like restaurants, stores, banks, health care providers, and transportation. For example: • The Act would make it unlawful for contractors, mechanics, and car dealerships to charge a woman more than a man for the same work. • The Act would ensure that breastfeeding mothers are not excluded from or harassed in public places. • The Act would ensure that chain pharmacies cannot refuse to fill a woman’s birth control prescription. • The Act would provide protections against sexual harassment in public transportation, restaurants, and other public accommodations. In Federally Funded Programs and Activities The Equality Act would prohibit any program that receives federal funds from discriminating on the basis of sex. For example: • A developer with a federal grant could not discriminate against women-owned businesses in its contracting. • Women would have new tools to challenge a police department’s systematically inadequate response to sexual violence or intimate partner violence, if the police department received federal funds. • An organization getting federal funding to provide services to trafficking victims could not refuse to provide them with access to reproductive health care. Ensuring that religion is not used as an excuse to discriminate The Equality Act makes it clear that the Religious Freedom Restoration Act (RFRA) – a broad religious exemption law – cannot be used to block these important protections against discrimination. This is necessary because in recent years individuals, organizations, and for-profit corporations have used RFRA to claim that any number of laws, including but not limited to child labor laws, domestic violence laws, and nondiscrimination laws, do not apply to them.4 The Equality Act makes clear that religion does not give employers, landlords, schools or others a license for discrimination.