Why the US needs the Equality Act

In January, Angola made headlines when it became the latest country to prohibit discrimination based on sexual orientation. At least 72 other countries have advanced human rights by adopting similar anti-discrimination protections, including the overwhelming majority of countries in Europe and the Americas.

In most of the United States, however, employees fired from their jobs or tenants evicted from their homes, simply for being lesbian, gay, bisexual or transgender (LGBT), have no adequate recourse. The Equality Act, reintroduced in Congress on Wednesday, would change that and provide much-needed protection for LGBT people across the United States.  

{mosads}The Equality Act would strengthen civil rights protections in three ways. First, it would make it crystal clear that federal sex discrimination laws prohibit discrimination based on sex stereotypes, pregnancy, sexual orientation, gender identity and sex characteristics.

Second, the bill would expand existing civil rights protections from discrimination in public places to include entertainment venues, places that sell goods and services, and transportation services.

And third, the Equality Act would ensure that the Religious Freedom Restoration Act (RFRA), a bill that protects the exercise of religious freedom in the United States, cannot be misused as a license to discriminate.

All of these additions are badly needed. In the absence of clear federal protections, only 20 U.S. states and the District of Columbia expressly prohibit discrimination based on both sexual orientation and gender identity in employment, housing and public accommodations. And 53 percent of people in the United States live in states without comprehensive protections, leaving them without any recourse if they encounter blatant discrimination simply because of who they are.

Arguably, federal law already provides some of this protection. In recent years, state and federal courts have agreed that discrimination against LGBT people is a form of sex discrimination. Just weeks ago, for example, the Missouri Supreme Court ruled that employment discrimination based on sexual orientation and gender identity are prohibited under sex discrimination provisions in state law. The decision echoes two recent rulings by federal appellate courts that found that the sex discrimination provision of Title VII — the federal employment anti-discrimination law — prohibits discrimination based on being LGBT. The Equal Employment Opportunity Commission, which enforces federal employment law, has reached the same conclusion.

These protections are important, but tenuous. The U.S. Supreme Court has not yet decided whether the term “sex” in federal law includes sexual orientation and gender identity — and it is debating whether to take three cases that would present that question. If the court takes those cases and adopts a narrow understanding of sex discrimination, decades of civil rights progress could be in peril.

Whether or not the Supreme Court acts, lawmakers have good reasons to strengthen and clarify federal protections. The Equality Act would help ensure that characteristics that are irrelevant to whether someone is a good employee, tenant or customer are not used to turn them away.

This is especially important as some states consider laws that would deliberately create a license for businesses, adoption and foster care agencies, health care providers and others to discriminate against LGBT people. Human Rights Watch has documented how these so-called “religious liberty” laws deny LGBT people goods and services, deter them from the marketplace for fear of facing discrimination, and send a signal that they are unwelcome in their state. By clarifying that religious protections cannot be used to discriminate, the Equality Act would better ensure that both religious believers and LGBT people are protected under federal law.  

It would also make anti-discrimination laws clear and uniform, which is necessary if these laws are to be effective. LGBT people should not need a law degree to determine whether they are protected from discrimination when they apply for a job, rent an apartment, or eat at a restaurant in the places they happen to live, visit or travel through.

Providing clarity about anti-discrimination laws also benefits employers, landlords and businesses. Currently, these groups are subject to a convoluted patchwork of state laws, municipal ordinances and judicial interpretations, making it difficult to determine the scope of their obligations. For that reason, the business community has been a strong supporter of the bill, with 165 major businesses joining a coalition to promote passage of the Equality Act.

And businesses aren’t the only ones who consider nondiscrimination protections a no-brainer. In a poll released by the Public Religion Research Institute (PRRI), 69 percent of the U.S. public polled said they support laws that would protect LGBT people in employment, housing and public accommodations, and a majority of those polled in every state supported these laws by double-digit margins. What’s more, there is bipartisan public support for such efforts; majorities of Democrats, independents and Republicans all support nondiscrimination legislation, PRRI found.

The United States has championed LGBT rights abroad, but it has not secured basic anti-discrimination protections at home. Widespread support for such protections reflects the simple, bipartisan belief that nobody should be denigrated and disadvantaged simply because of who they are. With the Equality Act, Congress has an opportunity to reaffirm that principle for a new generation.

Ryan Thoreson is an LGBT researcher at Human Rights Watch. Follow him on Twitter @ryanthoreson.