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Paige Richardson, Associate Member, University of Cincinnati Law Review
The Civil Rights Act of 1964 prohibits discrimination based on race, color, religion, sex, or nationality. A protected class that is notably absent from constitutional purview is sexual orientation. H.R.5, colloquially known as the “Equality Act”, seeks to address the limited scope of the Civil Rights Act by specifically including prohibitions against the discrimination of LGBTQ+ groups and pregnant women. Though there is significant backlash to the Equality Act from conservative religious groups, the Act synthesizes the United States Supreme Court jurisprudence into legislation and resolves areas of murky jurisprudence. The Equality Act is necessary legislation that not only protects an incredibly marginalized and endangered population but also makes sense of a muddied area of jurisprudence.
II. What is the Equality Act?
The Equality Act provides four key amendments to existing federal protections. First, the Equality Act adds sexual orientation and gender identity as a protected class in discrimination and segregation. Areas of protection include education, public accommodation, housing, and employment. Second, the Act expands the existing definition of public accommodations. Third, the Act allows the federal government to intervene in matters of discrimination on the basis of sex, sexual orientation, or gender identity. Finally, the Act specifically prohibits discrimination on the basis of gender identity in regards to access to bathrooms, locker rooms, and dressing rooms.
A. Protected Classes Defined
The Equality Act seeks to add LGBTQ+ groups to the already existing protected classes recognized in federal law. For that reason, the Act proposes that existing legislation such as the Civil Rights Act of 1964, the Fair Housing Act, the Equal Credit Opportunity Act, and the Jury Selection and Services Act, among other statutes, be amended to include the language “sex (including sexual orientation and gender identity).” In proposing this language, the Act creates federal definitions for the terms “sexual orientation” and “gender identity” and amends the federal definition of “sex”. The Act defines sexual orientation as covering “homosexuality, heterosexuality, or bisexuality.” Gender identity is defined to include “gender-related identity, appearance, mannerisms, or other gender-related characteristics of an individual, regardless of the individual’s designated sex at birth.” The Act amends the definition of sex to include sex stereotypes; pregnancy, childbirth, or a related medical condition; sexual orientation or gender identity; and sex characteristics, including intersex traits.
These amendments ensure that LGBTQ+ individuals enjoy the same rights and protections as every other group in the country at a federal level. As of now, there is no federal legislation expressly protecting the rights and freedoms of LGBTQ+ individuals. Instead, LGBTQ+ people must depend on patchwork and often insufficient state protections. According to the 2020 State Equality Index (“SEI”), twenty-seven states do not have adequate anti-discrimination laws in place for sexual orientation and gender identity. The Act would set a uniform discrimination policy for marginalized groups on a national level and would limit deviations in interpretations.
B. Public Accommodations
In addition to introducing amendments to the definitions of the protected classes in federal anti-discrimination law, the Act proposes expanding the scope of protection for all protected classes by extending protections for public accommodations. In addition to the protections already in place via the Civil Rights Act of 1964, the Act would prohibit discrimination in “stadium[s] or other place[s] of or establishment[s] that provide exhibition, entertainment, recreation, exercise, amusement, public gathering, or public display.” This is a significant expansion from the original language of the Civil Rights Act, which had prohibited discrimination in “stadium[s] or other place[s] of exhibition or entertainment.” The Act also proposes prohibitions on discrimination in “any establishment that provides a good, service, or program, including a store, shopping center, online retailer or service provider, salon, bank, gas station, food bank, service or care center, shelter, travel agency, or funeral parlor, or establishment that provides health care, accounting, or legal services.” This inclusion, in particular, is important because it implicates not only cases like Masterpiece Cakeshop in which storeowners claim religious objections to serving LGBTQ+ individuals, but also state legislation like that recently passed in Arkansas, banning transgender youth from receiving medical treatment. Finally, the Equality Act provides transportation protections by prohibiting discrimination on “any train service, bus service, car service, taxi service, airline service, station, depot, or other place of or establishment that provides transportation service”.
These additions represent significant expansions to the scope of federal anti-discrimination laws, but neither the expanded protected class definitions nor the expanded scope of public accommodations definitions necessarily violate current Supreme Court jurisprudence. In fact, the Equality Act brings federal anti-discrimination law largely in line with past Supreme Court decisions.
III. Synthesizing Supreme Court Jurisprudence
Past Supreme Court decisions on issues of sexual orientation and gender identity have expanded our legal recourse in the area of discrimination and civil rights. Obergefell and Bostock remain two of the most important pieces of jurisprudence on sexual orientation and gender identity. Each decision provides legitimate reasoning for the necessity of national anti-discrimination legislation but leaves open significant questions that have consistently been left unresolved by the Court.
Obergefell is considered the pinnacle case for LGBTQ+ rights because it not only granted same-sex couples the right to marry but did so by acknowledging their right to autonomy and dignity. In particular, the majority stated that among the unenumerated rights protected by the Constitution are “individual dignity and autonomy, including intimate choices that define personal identity and beliefs.” This dignity framework “illustrated the anti-stereotyping possibilities that reflect a normative change for sexual minorities beyond marriage” and leaves “fertile judicial sentiments for imparting reasons of how and why the experiences of sexual minorities have been marked with invidious discrimination.” Indeed, this framework marked a significant change from the Court’s past jurisprudence on discrimination. Rather than a focus on facial neutrality and intent, the Court looked to discriminatory effect. However, with a new Court, the lack of explicit anti-discrimination protections for sexual orientation and gender identity left marginalized groups at a severe disadvantage.
The case most specifically invoked by the Equality Act is Bostock, in which the Court expanded the interpretation of “sex” in Title VII to include gender identity and sexual orientation. It is clear that this interpretation should extend to other federal legislation recognizing “sex” as a protected class. Indeed, President Biden has released an executive order requiring federal agencies to apply the Bostock decision to all federal legislation where “sex” is a protected class. Some critics of the Equality Act have argued that the ruling and subsequent executive order defeats the purpose of legislation, as the expanded definition of “sex” would apply to all other legislation now. However, this argument minimizes the Equality Act to an etymological issue and ignores the possibility of inconsistent application of the law by the courts and administrations of the future.
IV. Why the Equality Act is Necessary
Despite Supreme Court decisions granting certain rights and protections to LGBTQ+ groups, the Equality Act is still necessary for a number of reasons. First, the extent of discrimination experienced by members of the LGBTQ+ community is extraordinary and deserving of federal protections. Second, the Bostock decision must be enshrined in legislation to protect marginalized groups from inconsistent application of laws by different administrations. Finally, the tensions between religious freedom rights and protections for marginalized groups must be confronted and defined.
A. Extent of Discrimination
In 2020, a total of 185 bills negatively targeting the LGBTQ+ community were introduced to state legislatures. Of those bills, four have already been enacted into law. 2021 has not been any kinder to LGBTQ+ groups as we have already seen the introduction of several anti-transgender youth bills, such as the Arkansas SAFE Act. Another specific area deserving attention is “No Promo Homo” or “Don’t Say Gay” laws in education. These laws ban educators from teaching or even talking about LGBTQ+ people, issues, and histories unless those teachings are in a negative light. Five states, Texas, Oklahoma, Louisiana, Mississippi, and Alabama, currently have “Don’t Say Gay” laws. In addition, two states, Missouri and South Dakota, expressly prohibit school districts from implementing anti-discrimination and bullying measures for LGBTQ+ students. These laws reduce the amount of resources and support available for one of the most at-risk youth groups in the nation. This is simply one example of the extent and invidiousness of anti-LGBTQ+ discrimination in this country.
B. Importance of enshrining Bostock in legislation
Even though the Bostock decisions implicitly protects LGBTQ+ groups in any legislation that includes “sex” as a protected class, there is no guarantee that future administrations will extend those protections. For example, under the Obama administration, federal policies included transgender student guidance on issues such as bathroom bills and youth athletics. The Trump administration rescinded these guidance policies. In October 2017, Attorney General Jeff Sessions released a memo stating that the Department of Justice would no longer support cases arguing that transgender people are protected from employment discrimination. Even after the Bostock decision, the Trump administration broadened sexual orientation and gender identity rollbacks to continue discrimination at a federal level. No group deserves to live their lives constantly wondering if their rights will be ensured for the next four years or not. At the very least, the Bostock decision must be incorporated into federal legislation to ensure universal interpretation and application no matter the administration in the West Wing.
C. The RFRA Problem
Many of the opponents to the Equality Act cite their religious freedom rights under the First Amendment and the Religious Freedom Restoration Act (“RFRA”). A number of Supreme Court cases have avoided taking up the issue of the tension between religious freedom and anti-discrimination laws. This perhaps suggests that the legislature should resolve this issue rather than the judicial branch. The Court has delegated similar decisions before, in cases such as Employment Division v. Smith. However, the future of Employment Division v. Smith is presumably at risk as we await the Fulton v. City of Philadelphia decision. Ultimately, the religious freedom versus anti-discrimination rights debate is one that has existed for many years and will likely continue to exist for many more. Whether the judiciary or the legislature will resolve this issue remains to be seen; however, the Court’s continued resistance to answer the question suggests that the democratically elected legislature may be in a more appropriate decision-making position.
The Equality Act protects LGBTQ+ groups by including sexual orientation and gender identity as protected classes in federal legislation, expanding the areas impacted by federal legislation, enshrining the Bostock decision in federal law, and resolving the RFRA issue. The extent of discrimination that LGBTQ+ groups face demands federal action and universal interpretation.
 Civil Rights Act of 1964, Pub. L. 88-352, 78 Stat. 241 (1964).
 Equality Act, H.R.5, 117th Cong. (2021) [hereinafter “Equality Act”].
 See Obergefell v. Hodges, 576 U.S. 644 (2015); Bostock v. Clayton County, Georgia, 140 S.Ct. 1731 (2020).
 H.R.5 – Equality Act (2021), https://www.congress.gov/bill/117th-congress/house-bill/5.
 Equality Act, H.R.5, 117th Cong. § 1101(5) (2021).
 Id. at § 1101(2).
 Id. at § 1101(4)(A-D).
 Danielle Kurtzleben, House Passes The Equality Act: Here’s What It Would Do, NPR (Feb. 24, 2021, 5:00 AM), https://www.npr.org/2021/02/24/969591569/house-to-vote-on-equality-act-heres-what-the-law-would-do.
 Id.; see also 2020 State Equality Index, The Human Rights Campaign (2020), https://hrc-prod-requests.s3-us-west-2.amazonaws.com/HRC-SEI20-report-Update-022321-FInal.pdf?mtime=20210322114741&focal=none.
 Danielle Kurtzleben, supra n. 14.
 Equality Act, supra n. 3 at § 3(a)(2)(A).
 Civil Rights Act of 1964 Title II, 42 U.S.C. §2000a(b)(3) (1964).
 Equality Act, supra n. 3 at § 3(a)(4).
 Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Com’n, 138 S.Ct. 1719 (2018).
 See Arkansas Save Adolescents From Experimentation (SAFE) Act, H.B.1570, 93d Gen. Assemb., Reg. Sess. (Ark. 2021) [hereinafter “SAFE Act”].
 Equality Act, supra n. at § 3(a)(5).
 Obergefell v. Hodges, 576 U.S. 644 (2015).
 Bostock v. Clayton County, Georgia, 140 S.Ct. 1731 (2020).
 Obergefell v. Hodges, 576 U.S. 644 (2015).
 Id. at 663.
 Jeremiah A. Ho, Once We’re Done Honeymooning: Obergefell v. Hodges, Incrementalism, and Advances for Sexual Orientation Anti-Discrimination, 104 Ky. L. J. 207, 260 (2015).
 See i.e., Loving v. Virginia, 388 U.S. 1 (1967) (holding anti-miscegenation laws facially unconstitutional with a focus on governmental intent).
 Holning Lau, From Loving to Obergefell: Elevating the Significance of Discriminatory Effects, 25 Va. J. Soc. Pol’y & L. 317, 318-21 (2018).
 Bostock v. Clayton County, Georgia, 140 S.Ct. 1731 (2020).
 See Sharita Gruberg, Beyond Bostock: The Future of LGBTQ Civil Rights, Center for American Progress (Aug. 26, 2020), https://www.americanprogress.org/issues/lgbtq-rights/reports/2020/08/26/489772/beyond-bostock-future-lgbtq-civil-rights/.
 Exec. Order No. 13988, 86 Fed. Reg. 7023 (Jan. 20, 2021).
 Danielle Kurtzleben, supra n. 14.
 2020 State Equality Index, The Human Rights Campaign 5 (2020), https://hrc-prod-requests.s3-us-west-2.amazonaws.com/HRC-SEI20-report-Update-022321-FInal.pdf?mtime=20210322114741&focal=none.
 SAFE Act, supra n. 23.
 “No Promo Homo” and “Don’t Say Gay” Laws, The Trevor Project (2021), https://www.thetrevorproject.org/get-involved/no-promo-homo-and-dont-say-gay-laws/.
 The Trevor Project, supra n. 39.
 Selena Simmons-Duffin, ‘Whiplash’ of LGBTQ Protections and Rights, From Obama to Trump, NPR (Mar. 2, 2020), https://www.npr.org/sections/health-shots/2020/03/02/804873211/whiplash-of-lgbtq-protections-and-rights-from-obama-to-trump.
 Erin Mulvaney, Lydia Wheeler, Paige Smith, Andrew Kreighbaum, Trump Agencies Move to Limit LGBT Rights as Courts Expand Them, Bloomberg Law (July 6, 2020), https://news.bloomberglaw.com/daily-labor-report/trump-agencies-move-to-limit-lgbt-rights-as-courts-expand-them.
 U.S. Const. amend. I; Religious Freedom Restoration Act of 1993 (“RFRA”), 42 U.S.C.A. §2000bb (1993).
 Obergefell v. Hodges, 576 U.S. 644 (2015) (acknowledging freedom of religion protections but not defining their scope); Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Com’n, 138 S.Ct. 1719 (2018) (not reaching the issue of religious freedom protections at all); Bostock v. Clayton County, Georgia, 140 S.Ct. 1731 (2020) (acknowledging freedom of religion protections but not defining their scope).
 Employment Div., Dept. of Human Resources of Oregon v. Smith, 494 U.S. 1595 (1990).
 Fulton v. City of Philadelphia, 922 F.3d 140 (3d Cir. 2019) (cert. granted).