2021 started as a banner year for LGBTQ rights.
In January, newly-inaugurated President Joe Biden signed a pair of executive orders to combat discrimination based on sexual orientation and gender identity and reverse a ban on transgender individuals serving in the military that was instituted by his predecessor, former President Donald Trump.
The same month, the Labor Department suspended another Trump-era policy barring federal agencies and government contractors from providing diversity, equity and inclusion (DEI) training, and the following month, on Feb. 25, the House of Representatives passed the Equality Act for just the second time in the bill’s 50-year history.
“It was thrilling,” said former Democratic Congressman David Cicilline, who helped lead the Equality Act’s passage in the House that year. “It’s rare that you’re taking a vote to protect a whole community from discrimination — it doesn’t happen in every generation.”
But building on that momentum proved difficult in the Senate — then equally split between Democrats and Republicans — and the landmark civil rights legislation ultimately failed to advance in the upper chamber. Progress in passing the bill — which Biden vowed in 2020 to make a top legislative priority during his first 100 days in office — has largely stalled since then.
Those who support the Equality Act, which would amend existing federal anti-discrimination laws to make gender identity and sexual orientation protected classes, are mostly unperturbed by the lack of progress over the past three years, which they say is more reflective of Republican dysfunction than of diminishing support for the bill.
“The main obstacle is that you have a Republican conference beholden to its most extreme members and, of course, the former president,” said Rep. Becca Balint (D-Vt.), referring to Trump.
Republicans since regaining control of the House in 2022 have filed and passed legislation and employed rhetoric criticized by LGBTQ advocates as being antithetical to equal rights, and Trump — who as president opposed the Equality Act when it passed the House for the first time in 2019, over concerns about parental rights and religious freedom — has pledged to enact a slate of laws targeting the LGBTQ community if he is reelected.
Meanwhile, support for federal nondiscrimination protections for LGBTQ individuals is at an all-time high. Nearly 80 percent of Americans — and more than 60 percent of Republicans — said they favor laws that would protect LGBTQ people against discrimination in jobs, public accommodations and housing in a July Public Religion Research Institute poll.
Proponents of the Equality Act say they intend to capitalize on increased public support for the measure, but they’ll need to recapture the House and maintain control of the White House first.
“It’s why the stakes are so incredibly high in these midterm elections from the perspective of being a queer American who would like my rights protected everywhere I go in this country,” Balint said.
“This is just purely a building public support session for the bill,” said Rep. Mark Pocan (D-Wis.), chair of the Congressional Equality Caucus. “Should the Democrats win in November — which I think we have a good chance to — our real strategy is how you make sure you get it through the Senate as well, given some of the rules there.”
The Equality Act would need at least 67 votes in the Senate, where Democrats have a slim majority, to overcome a filibuster. The bill failed to garner enough bipartisan support in the upper chamber after it was passed by the House in 2021, and the current version of the bill, introduced in June by Sen. Jeff Merkley (D-Ore.), has just 50 co-sponsors, all of them Democrats and independents who caucus with Democrats.
Sen. Joe Manchin (D-W.Va.) is the lone Democratic holdout. In explaining his opposition to the bill in 2019, Manchin said the Equality Act does not provide sufficient guidance to school officials regarding transgender students.
Sen. Tammy Baldwin (D-Wis.), who in 2012 became the first openly gay person elected to the Senate, pointed to the success of the Respect for Marriage Act when asked about the Equality Act’s future.
Biden signed the landmark law safeguarding marriage equality in 2022, shortly after it was approved by Congress with bipartisan support Baldwin helped drum up.
“Just over a year ago, we did what many believed was impossible and earned support from both parties to protect LGBTQ rights in passing my Respect for Marriage Act,” Baldwin said in an emailed statement.
“I remain committed and hopeful we can build on that momentum and pass the Equality Act, to put in law critical civil rights protections for LGBTQ Americans and live up to our nation’s ideals,” she said.
Rep. Mark Takano (D-Calif.), the Equality Act’s primary sponsor in the House, said this year’s elections can’t come soon enough.
LGBTQ advocates “had the wind at our backs,” following the Supreme Court’s 2015 ruling that legalized same-sex marriage nationwide, he said, but more recently, “extremists have re-organized and re-tooled their efforts” to successfully target LGBTQ people.
“With extreme, right-wing lawmakers here in Congress and across the country advancing anti-LGBTQ+ legislation, the Equality Act is desperately needed,” Takano said in an email. According to the ACLU, more than 450 anti-LGBTQ bills have already been filed in state legislatures this year, closing in on last year’s record.