Equality Act stalled even as LGBTQ job prejudice is banned
WASHINGTON — Even as the Supreme Court banned employment discrimination against LGBTQ people Monday, Congress remains far from passing legislation that would do the same in other facets of life.
The House approved a bill barring discrimination on the basis of sexuality or gender identity in May 2019, with all Democrats and eight Republicans in favor. But the Equality Act has gone nowhere in the Republicancontrolled Senate, where it has only one GOP cosponsor.
Now, advocates say, the Supreme Court ruling extending employment protections for gay, lesbian and transgender Americans shows the need for more action by Congress.
Justice Neil Gorsuch, a President Trump appointee who wrote Monday’s Supreme Court ruling, crafted it narrowly to apply only to whether people can be discriminated against in their work.
“Sadly, there’s still a large swath of ways in which LGBTQ individuals can be discriminated against without federal statutory protection,” said Kimberly WestFaulcon, a constitutional law professor at Loyola Law School in Los Angeles.
Public accommodations, for example, such as having the right to eat in restaurants or use the same bathrooms as others, are not affected by Monday’s ruling.
LGBTQ rights advocates could use the ruling to try to expand court protections over time in other areas, but it would take years of litigation and agreeable judges.
Democrats and LGBTQ advocacy groups say that’s where the need for the Equality Act comes in. It would immediately ban discrimination against LGBTQ people in areas including housing, health care and education. They called on Senate Majority Leader Mitch McConnell, RKy., to bring up the bill.
“Leader McConnell must end his partisan obstruction and allow the Senate to vote on this critical legislation,” House Speaker Nancy Pelosi, DSan Francisco, said in a statement.
That sentiment was echoed by California Democratic Sen. Dianne Feinstein. She called Monday’s ruling “long overdue,” and argued that more was still needed “to strengthen protections for LGBT Americans in all aspects of their lives.”
Most Republicans have opposed the legislation. They argue that the bill, in requiring society to recognize people’s gender identity, would put women and girls at a disadvantage by allowing women born as men to compete in their spaces.
Supporters of the legislation have dismissed such criticisms. The American Civil
Liberties Union called it “fear mongering intended to push transgender and nonbinary people out of public spaces.”
Congress has come close to passing legislation offering more protections for LGBTQ people before. In 2013, the Democraticcontrolled Senate passed an employment discrimination law on a bipartisan vote with 10 Republicans. But the GOPled House did not follow suit, and only four of the Republicans who voted for it then still serve in the Senate.
The Supreme Court has also shown no indication that it would be inclined to extend the protections beyond Monday’s ruling. Chief Justice John Roberts dissented from the 2015 high court ruling that legalized samesex marriage, and Trump’s nominees to the court since that ruling have no track record suggesting they would hold that the Constitution offers broad protection based on sexuality and gender identity.
In fact, Monday’s ruling — which focuses on the explicit wording of the law — shows how important it is for Congress to act if members want LGBTQ protections extended,
WestFaulcon said.
“If you’re focused on what rights LGBTQ individuals should have, it really should be a clarion call to Congress that if you pass statutes that protect people’s civil rights, there seems to be a Supreme Court majority willing to hold that up,” WestFaulcon said. “This is not an indication that this court is necessarily going to interpret those rights into the Constitution any time soon.”
In fact, leaving the issue up to Congress is one argument that conservatives might agree with — although they’d argue that Congress should not pass the Equality Act.
“While the question of whether to amend (the federal Civil Rights Act) to add more categories may be a difficult one as a matter of policy, the question of the Court’s role on this issue was an easy one,” tweeted conservative judicial activist Carrie Severino. “Allow the people to decide the issue through their elected representatives.”