S. 788 (116^th): Equality Act

Discrimination can occur on the basis of the sex, sexual orientation, gender identity, or pregnancy, childbirth, or a related medical condition of an individual, as well as because of sex-based stereotypes. Each of these factors alone can serve as the basis for discrimination, and each is a form of sex discrimination.

A single instance of discrimination may have more than one basis. For example, discrimination against a married same-sex couple could be based on the sex stereotype that marriage should only be between heterosexual couples, the sexual orientation of the two individuals in the couple, or both. Discrimination against a pregnant lesbian could be based on her sex, her sexual orientation, her pregnancy, or on the basis of multiple factors.

Lesbian, gay, bisexual, transgender, and queer (referred to as LGBTQ) people commonly experience discrimination in securing access to public accommodations—including restaurants, senior centers, stores, places of or establishments that provide entertainment, health care facilities, shelters, government offices, youth service providers including adoption and foster care providers, and transportation. Forms of discrimination include the exclusion and denial of entry, unequal or unfair treatment, harassment, and violence. This discrimination prevents the full participation of LGBTQ people in society and disrupts the free flow of commerce.

Women also have faced discrimination in many establishments such as stores and restaurants, and places or establishments that provide other goods or services, such as entertainment or transportation, including sexual harassment, differential pricing for substantially similar products and services, and denial of services because they are pregnant or breastfeeding.

Many employers already and continue to take proactive steps, beyond those required by some States and localities, to ensure they are fostering positive and respectful cultures for all employees. Many places of public accommodation also recognize the economic imperative to offer goods and services to as many consumers as possible.

Regular and ongoing discrimination against LGBTQ people, as well as women, in accessing public accommodations contributes to negative social and economic outcomes, and in the case of public accommodations operated by State and local governments, abridges individuals’ constitutional rights.

The discredited practice known as conversion therapy is a form of discrimination that harms LGBTQ people by undermining individuals sense of self worth, increasing suicide ideation and substance abuse, exacerbating family conflict, and contributing to second class status.

Both LGBTQ people and women face widespread discrimination in employment and various services, including by entities that receive Federal financial assistance. Such discrimination—

Federal courts have widely recognized that, in enacting the Civil Rights Act of 1964, Congress validly invoked its powers under the Fourteenth Amendment to provide a full range of remedies in response to persistent, widespread, and pervasive discrimination by both private and government actors.

Discrimination by State and local governments on the basis of sexual orientation or gender identity in employment, housing, and public accommodations, and in programs and activities receiving Federal financial assistance, violates the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States. In many circumstances, such discrimination also violates other constitutional rights such as those of liberty and privacy under the due process clause of the Fourteenth Amendment.

Individuals who are LGBTQ, or are perceived to be LGBTQ, have been subjected to a history and pattern of persistent, widespread, and pervasive discrimination on the bases of sexual orientation and gender identity by both private sector and Federal, State, and local government actors, including in employment, housing, and public accommodations, and in programs and activities receiving Federal financial assistance. An explicit and comprehensive national solution is needed to address such discrimination, which has sometimes resulted in violence or death, including the full range of remedies available under the Civil Rights Act of 1964.

Numerous provisions of Federal law expressly prohibit discrimination on the basis of sex, and Federal agencies and courts have correctly interpreted these prohibitions on sex discrimination to include discrimination based on sexual orientation, gender identity, and sex stereotypes. In particular, the Equal Employment Opportunity Commission correctly interpreted title VII of the Civil Rights Act of 1964 in Macy v. Holder, Baldwin v. Foxx, and Lusardi v. McHugh.

The absence of explicit prohibitions of discrimination on the basis of sexual orientation and gender identity under Federal statutory law has created uncertainty for employers and other entities covered by Federal nondiscrimination laws and caused unnecessary hardships for LGBTQ individuals.

LGBTQ people often face discrimination when seeking to rent or purchase housing, as well as in every other aspect of obtaining and maintaining housing. LGBTQ people in same-sex relationships are often discriminated against when two names associated with one gender appear on a housing application, and transgender people often encounter discrimination when credit checks or inquiries reveal a former name.

National surveys, including a study commissioned by the Department of Housing and Urban Development, show that housing discrimination against LGBTQ people is very prevalent. For instance, when same-sex couples inquire about housing that is available for rent, they are less likely to receive positive responses from landlords. A national matched-pair testing investigation found that nearly one-half of same-sex couples face adverse, differential treatment when seeking elder housing. According to other studies, transgender people have half the homeownership rate of non-transgender people and about 1 in 5 transgender people experience homelessness.

As a result of the absence of explicit prohibitions against discrimination on the basis of sexual orientation and gender identity, credit applicants who are LGBTQ, or perceived to be LGBTQ, have unequal opportunities to establish credit. LGBTQ people can experience being denied a mortgage, credit card, student loan, or many other types of credit simply because of their sexual orientation or gender identity.

Numerous studies demonstrate that LGBTQ people, especially transgender people and women, are economically disadvantaged and at a higher risk for poverty compared with other groups of people. For example, older women in same-sex couples have twice the poverty rate of older different-sex couples.

The right to an impartial jury of one’s peers and the reciprocal right to jury service are fundamental to the free and democratic system of justice in the United States and are based in the Bill of Rights. There is, however, an unfortunate and long-documented history in the United States of attorneys discriminating against LGBTQ individuals, or those perceived to be LGBTQ, in jury selection. Failure to bar peremptory challenges based on the actual or perceived sexual orientation or gender identity of an individual not only erodes a fundamental right, duty, and obligation of being a citizen of the United States, but also unfairly creates a second class of citizenship for LGBTQ victims, witnesses, plaintiffs, and defendants.

Numerous studies document the shortage of qualified and available homes for the 437,000 youth in the child welfare system and the negative outcomes for the many youth who live in group care as opposed to a loving home or who age out without a permanent family. Although same-sex couples are 7 times more likely to foster or adopt than their different-sex counterparts, many child placing agencies refuse to serve same-sex couples and LGBTQ individuals. This has resulted in a reduction of the pool of qualified and available homes for youth in the child welfare system who need placement on a temporary or permanent basis. Barring discrimination in foster care and adoption will increase the number of homes available to foster children waiting for foster and adoptive families.

LGBTQ youth are overrepresented in the foster care system by at least a factor of two and report twice the rate of poor treatment while in care compared to their non-LGBTQ counterparts. LGBTQ youth in foster care have a higher average number of placements, higher likelihood of living in a group home, and higher rates of hospitalization for emotional reasons and juvenile justice involvement than their non-LGBTQ peers because of the high level of bias and discrimination that they face and the difficulty of finding affirming foster placements. Further, due to their physical distance from friends and family, traumatic experiences, and potentially unstable living situations, many youth involved with child welfare are at risk for being targeted by traffickers seeking to exploit children. Barring discrimination in child welfare services will ensure improved treatment and outcomes for LGBTQ foster children.

in subsection (a), by inserting sex (including sexual orientation and gender identity), before or national origin; and

in subsection (b)—

in the section header, by striking sex, and inserting sex (including sexual orientation and gender identity),;

except in subsection (e), by striking sex, each place it appears and inserting sex (including sexual orientation and gender identity),;

in subsection (e)(1), by striking enterprise, and inserting enterprise, if, in a situation in which sex is a bona fide occupational qualification, individuals are recognized as qualified in accordance with their gender identity,; and

in subsection (h), by striking sex the second place it appears and inserting sex (including sexual orientation and gender identity),.

by striking sex, the first place it appears and inserting sex (including sexual orientation and gender identity),; and

by striking employment. and inserting employment, if, in a situation in which sex is a bona fide occupational qualification, individuals are recognized as qualified in accordance with their gender identity..

in subsection (a), by striking sex, and inserting sex (including sexual orientation and gender identity),; and

in subsection (c), by striking sex and inserting sex (including sexual orientation and gender identity),.

in section 301(b), by striking sex, and inserting sex (including sexual orientation and gender identity),;

in section 302(a)(1), by striking sex, and inserting sex (including sexual orientation and gender identity),; and

by adding at the end the following:

in section 201(a)(1) (2 U.S.C. 1311(a)(1)) by inserting (including sexual orientation and gender identity), before or national origin,; and

by adding at the end of title II (42 U.S.C. 1311 et seq.) the following:

in section 2301(b)(2), by striking sex, and inserting sex (including sexual orientation and gender identity),;

in section 2302—

by adding at the end the following:

in section 802 (42 U.S.C. 3602), by adding at the end the following:

in section 804, by inserting (including sexual orientation and gender identity), after sex, each place that term appears;

in section 805, by inserting (including sexual orientation and gender identity), after sex, each place that term appears;

in section 806, by inserting (including sexual orientation and gender identity), after sex,;

in section 808(e)(6), by inserting (including sexual orientation and gender identity), after sex,; and

by adding at the end the following:

by redesignating subsections (f) and (g) as subsections (h) and (i), respectively;

by inserting after subsection (e) the following:

by adding at the end the following:

in section 1862, by inserting (including sexual orientation and gender identity), after sex,;

in section 1867(e), in the second sentence, by inserting (including sexual orientation and gender identity), after sex,;

in section 1869—

by adding at the end the following: