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H.R. 5: Equality Act

Should the 1964 law which outlawed race discrimination be updated to include LGBT individuals too?

Context

Great strides have been made this decade for legal equality based on sexual orientation or gender identity, including permitting openly gay troops in the military and the Supreme Court legalizing same-sex marriage nationwide. However, both those gains came at the federal level.

28 states still allow discrimination based on sexual orientation or gender identity on the state level, including in such sectors as employment and housing.

States used to similarly allow other forms of discrimination, before the Civil Rights Act of 1964 banned any discrimination or segregation on the basis of four categories: race, color, religion, or national origin.

What the legislation does

The Equality Act would add sexual orientation and gender identity to the Civil Rights Act of 1964, enshrining such nondiscrimination protections under federal law.

The House version was introduced on March 13 as bill number H.R. 5, by Rep. David Cicilline (D-RI1). The Senate version was introduced the same day as bill number S. 788, by Sen. Jeff Merkley (D-OR).

What supporters say

Supporters argue the legislation would extend the federal protections against racial discrimination, which the vast majority across the political spectrum now agree was the correct decision, to another class of minorities who may need it.

“To dismantle the discrimination undermining our democracy, we must ensure that all Americans, regardless of sexual orientation or gender identity, are treated equally under the law,” lead sponsor Rep. Cicilline and Speaker Nancy Pelosi wrote in an op-ed for The Advocate, “not just in the workplace, but in education, housing, credit, jury service and public accommodations as well.”

“50 percent of the national LGBTQ community still live in states that fail to provide clear legal protections to their LGBTQ citizens,” Reps. Cicilline and Pelosi continued. “While these states try to stand against the tide of progress, the Equality Act will guarantee a nationwide standard to ensure that no American is ever forced to lose their job or home or live in fear simply because of who they are or whom they love.”

What opponents say

Opponents counter that the bill could undermine religious freedom, medical doctors’ practices, and parental rights.

“Ultimately, parents’ rights to educate their own children and seek the best medical treatment for them would be undermined,” a letter by the Conservative Action Project reads. “In Ohio, a judge terminated a couple’s custody of their 17-year daughter when they disagreed with the recommendations of a gender clinic and county agency that she take testosterone injections.”

“Medical professionals will be vulnerable to lawsuits if they decline to perform hormonal or medical procedures on patients who identify as transgender,” the letter continues. “Under the Equality Act, individuals and institutions could see increased lawsuits for failing to affirm same-sex marriage (in foster care and adoption), make single-sex private facilities co-ed, and use preferred pronouns for individuals who identify as transgender.”

Odds of passage

The bill first attracted 240 House cosponsors: 237 Democrats and three Republicans, the 32nd-most cosponsored bill this Congress. That was larger than previous versions: 201 cosponsors (199 Democrats and two Republicans) in 2017, and 178 cosponsors (176 Democrats and two Republicans) in 2015.

The bill passed the Democratic-controlled House by a 236–173 vote, on May 17. All voting Democrats voted in favor, 228–0. Republicans overwhelmingly opposed, 8–173.

The eight House Republicans in favor were Reps. Susan Brooks (R-IN5), Mario Diaz-Balart (R-FL25), Brian Fitzpatrick (R-PA1), Will Hurd (R-TX23), John Katko (R-NY24), Tom Reed (R-NY23), Elise Stefanik (R-NY21), and Greg Walden (R-Or2).

Odds of passage in the Republican-controlled Senate are slim. The Senate version has 46 cosponsors: 45 Democrats or Democratic-affiliated independents, plus Sen. Susan Collins (R-ME).

President Trump does not appear to have personally weighed in on the bill, although a senior administration official told the Washington Blade that Trump opposes it. However, back in 2000, Trump endorsed the idea.

“I like the idea of amending the 1964 Civil Rights Act to include a ban of discrimination based on sexual orientation,” Trump told The Advocate in a 2000 interview. “It would be simple. It would be straightforward. We don’t need to rewrite the laws currently on the books, although I do think we need to address hate-crimes legislation. But amending the Civil Rights Act would grant the same protection to gay people that we give to other Americans — it’s only fair.”

Last updated Oct 3, 2019. View all GovTrack summaries.

The summary below was written by the Congressional Research Service, which is a nonpartisan division of the Library of Congress, and was published on May 17, 2019.


Equality Act

This bill prohibits discrimination based on sex, sexual orientation, and gender identity in a wide variety of areas including public accommodations and facilities, education, federal funding, employment, housing, credit, and the jury system. Specifically, the bill defines and includes sex, sexual orientation, and gender identity among the prohibited categories of discrimination or segregation.

The bill expands the definition of public accommodations to include places or establishments that provide (1) exhibitions, recreation, exercise, amusement, gatherings, or displays; (2) goods, services, or programs; and (3) transportation services.

The bill allows the Department of Justice to intervene in equal protection actions in federal court on account of sexual orientation or gender identity.

Protections against discrimination based on race, color, religion, sex, sexual orientation, gender identity, or national origin shall include protections against discrimination based on (1) an association with another person who is a member of such a protected class; or (2) a perception or belief, even if inaccurate, that an individual is a member of such a protected class. The bill prohibits the Religious Freedom Restoration Act of 1993 from providing a claim, defense, or basis for challenging such protections.

The bill prohibits an individual from being denied access to a shared facility, including a restroom, a locker room, and a dressing room, that is in accordance with the individual's gender identity.