Is sexual orientation and gender identity discrimination illegal? Should it be? The recent passage of the Equality Act by the United States House of Representatives comes even as the nation’s highest court is considering what protections are available to LGBTQ employees under the federal Civil Rights Act. But the Republican-led Senate and the Trump Administration have shown this won’t be an easy fight.

In this blog post I will discuss legislation to amend the 1964 federal Civil Rights Act to include prohibitions on sexual orientation and gender identity discrimination. I will address the Equality Act’s passage in the House and opposition from the White House and Senate majority members. I will also discuss what options LGBT employees have now to protect themselves against discrimination and harassment, even if the bill does not pass.

The Civil Rights Act May, or May Not Protect Against Sexual Orientation and Gender Identity

The question of whether Title VI of the federal Civil Rights Act covers sexual orientation and gender identity is up for debate before the United States Supreme Court right now. In some areas of the country, courts have held that sexual orientation and gender identity discrimination are necessarily forms of gender discrimination, relying on stereotypes about how men and women dress and act, and who they love. But in other parts of the country, courts have held that Congress did not intend to protect LGBTQ workers in 1964 when the law was first passed.

The U.S. Supreme Court has granted certiorari to three cases in its next term to consider the issue. It appears that by June 2020, the Justices will provide an answer to whether the Civil Rights Act as it stands already protects against sexual orientation and gender discrimination nationwide.

The Equality Act Would Protect Gay and Trans Employees, Renters, Students, and More

But Democratic legislators aren’t willing to wait. After the Democrats took control of the U.S. House of Representatives in the 2018 election, Representative David N. Cicilline (D-RI), himself a gay man, introduced H.R. 5, known as the Equality Act. The bill, if passed would explicitly prohibit discrimination based on sex, sexual orientation, and gender identity in:

• Employment
• Housing
• Education
• Credit
• Federal funding
• Jury systems
• Public accommodations and facilities

It would allow the Justice Department to intervene when issues of sexual orientation and gender identity discrimination came to court under equal protection claims. It also would explicitly prohibit covered facilities from denying access to restrooms, locker rooms, and dressing rooms that align with the individual’s gender identity.

Democrats in the U.S. House stood firmly behind the bill, passing it with a vote of 236-to-173 (including eight Republicans).  House Speaker Nancy Pelosi (D-Calif.) said:

“No one should be forced to lose his or her job, their home or to live in fear because of who they are and whom they love.”

Representative Cicilline added:

“Despite significant advances, L.G.B.T. people across the country remain vulnerable to discrimination on a daily basis and too often have little recourse,” said “It is past time for the Equality Act to be written into law.”

Notably, several large corporations, each employing thousands of individuals nationwide, also supported the bill, including Google, Apple, and General Motors. IBM tweeted:

“While this is a historic milestone to be celebrated, we know there’s still much work ahead. IBM will continue to push for final passage of the Equality Act to prevent discrimination against Americans for being who they are.”

Opposition Stands in the Way of Easy Passage of Broader LGBT Protections

But before the Equality Act can become law it has two large hurdles to face: the Republican-controlled Senate, and the President’s desk. Republicans in the House and the Senate have opposed the bill, claiming that it would interfere with the religious freedom of those who hold “time-honored views” of marriage. They also say it could cause problems in sports where they claim men could pose as women and deny female athletes opportunities to compete at the highest levels.

The Trump Administration has also made its stance on sexual orientation and gender identity discrimination abundantly clear. The administration has rolled back several policies and rules intended to protect gay and transgender individuals, including their service in the military, access to equal protection in schools, and even their ability to define their own gender. Last year, the Department of Health and Human Services tried to establish a legal definition of sex as a biological, unchangeable condition defined by the individual’s genitalia at birth. While these efforts have faced stiff opposition in the courts, they also indicate that President Donald Trump is unlikely to sign the Equality Act even if it gets to his desk.

When the U.S. House passed the Equality Act it made a statement that it believes sexual orientation and gender identity discrimination are wrong and should be illegal regardless of any forthcoming Supreme Court decision. But as important as that statement was, it seems unlikely that the bill will become the law of the land, at least until after the next election.

At Eisenberg & Baum, we understand the importance of federal civil rights protection for gay and trans* Americans. Our employment discrimination attorneys, help LGBTQ workers and students protect their rights under Title IX, Title VII, and other civil rights laws. We stay on top of changes in the law, so that you know we are using the best strategies against the discrimination you face at work, school, and in housing. If you have been the victim of sexual orientation or gender identity discrimination, contact us. We’ll meet with you and help create a strategy that protects you and moves you closer to equality.