The Equality Act
What is the Equality Act?
If you’ve paid attention to politics (in the US) over the past few weeks, the Equality Act has been name-checked quite frequently. It was listed as a Day One priority of virtually every major Democratic presidential candidate at a recent town hall. It was brought up in response to a recent pair of Supreme Court employment discrimination cases, one involving a gay man, the other involving a trans woman, both of whom were fired after coming out. But what is it?
The Equality Act is an update to a number of federal anti-discrimination laws, primarily the Civil Rights Act of 1964. This act explicitly provides anti-discrimination protection on the basis of sexual orientation and gender identity. You can read the full text of it here, but if you don’t feel like it, the basic summary is that it’s mostly a Find-And-Replace job, substituting “sex (including sexual orientation and gender identity)” for the word “sex” in existing anti-discrimination laws.
Why is the Equality Act important?
Right now, across the entire US, it is illegal for someone to be fired due to their sexual orientation or gender identity. In many states, there is a specific state law prohibiting this form of discrimination. However, in the rest of the states, where there isn’t an explicitly state law, it’s prohibited because of an interpretation of the word “sex” in existing anti-discrimination laws.
These existing laws prohibit discrimination on the basis of sex. For a plain, simple example, that means that you can’t reject a qualified candidate for a job, simply because she’s a woman. Sex cannot be the deciding factor.
And that’s where the interpretation comes in. Over the years, guidance of federal agencies and findings in court cases have held that this protection on the basis of sex extends to sexual orientation and gender identity. Let me tell a quick pair of stories to illustrate:
1: You have a hardworking, recently promoted employee named Alex. One Monday morning, Alex comes into the office, sporting a shiny new ring. Intrigued, you ask about it. “I got married to Elizabeth on Saturday!”, comes the excited reply. You congratulate Alex and wish him a happy life.
2. You have a hardworking, recently promoted employee named Alex. One Monday morning, Alex comes into the office, sporting a shiny new ring. Intrigued, you ask about it. “I got married to Elizabeth on Saturday!”, comes the excited reply. You fire Alex and throw the contents of her desk on the street.
In this scenario, the only difference between Alex and Alex is their sex. Their sexual orientation is effectively irrelevant. You fired Alexandra for doing something you would have been fine with Alexander doing, therefore you have illegally discriminated against Alexandra on the basis of sex.
Or so says the interpretation.
The thing about an interpretation of this kind is that it’s fragile. It’s great when you have LGBTQ-friendly people at the wheel. But all it takes is one fascist dictator wannabe to tell the federal agencies to change their mind. All it takes is five people in black robes with a lean to the right to say “Nah, I think it means this”.
And that’s where we are today.
The court cases heard last month will be decided next June, and there is a very real possibility that the Supreme Court will reject the interpretation that sexual orientation and gender identity are protected on the basis of sex. If that happens, it will immediately become legal to fire people or refuse housing or kick someone off a bus for being gay or being trans in more than half of the states in this country.
So that’s bad.
The Equality Act, by explicitly including protection for sexual orientation and gender identity, will make it clear that kind of discrimination is illegal. It won’t be open to interpretation, and will be far more resistant to the direction of the wind in DC.
What else should I know about the Equality Act?
It explicitly provides protection for intersex people. When I did a survey of state-level anti-discrimination laws earlier this year, I found that intersex people were largely ignored. That leaves them in legal limbo land where maybe they’re protected and maybe not. The Equality Act includes “sex characteristics, including intersex traits” under the definition of “sex”, and would thereby unambiguously include that in all of the protections provided. However, while the Equality Act is a step in the right direction, but it does not address specific intersex issues.
It covers the “perception or belief, even if inaccurate” case, which plugs some potential loopholes in protection.
It is worded vaguely enough to protect agender and non-binary people, but it does not explicitly mention them.
Unfortunately, sexual orientation is defined as a specific, enumerated list: “homosexuality, heterosexuality, or bisexuality”. Asexual and pansexual, etc., are not included. This is a common failure of many anti-discrimination laws. I doubt it’s born of malice. Instead, it’s a combination of ignorance and inertia. So many existing laws define it this way, it’s easy to copy and paste without thinking. I prefer the language in New York City’s ordinance: “A continuum of sexual orientation exists and includes, but is not limited to, heterosexuality, homosexuality, bisexuality, asexuality and pansexuality.”
There is no mention of romantic or affectional orientation in the Equality Act. This strikes me as a huge hole. Not only does this mean it completely leave out protection for aromantic people, it opens a loophole for discrimination based on romantic orientation of all types.
Nothing in the Equality Act tries to fix unnecessarily gendered language that exists in the law. That would be a far more involved undertaking.
So where does the Equality Act stand?
The Equality Act has been passed in the House of Representatives, where it was a priority of the Democratic majority there. After passage, it was sent to the Senate, where it will die, because the Republican majority there wants nothing to do with it. And the President wouldn’t have signed it anyway. There is no chance in hell that it will be passed before 2021, and even that would require Democrats holding the House, taking the Senate, and getting the White House.
So, you see, that’s a bit of a problem. The Supreme Court’s ruling on these cases will come out in June 2020…
What you can do about it!
- Register to vote NOW if you’re eligible and haven’t already. Go. NOW. I’ll wait.
- VOTE.
- And vote for the Democrat where applicable. Republicans are actively opposed to this issue. You have seen what happens when Republicans have control over the government and it is up to you to make sure that doesn’t happen again. Yeah, sure, Democrats aren’t perfect, but they’re a hell of a lot better than this fascist clown show and homophobic sidekick we have now, so vote Democrat and then keep the pressure on to force them to get better. (And while you’re at it, push them for Ranked Choice Voting so we can maybe get rid of the two party stranglehold…)
- Find out about your local anti-discrimination laws. Local anti-discrimination laws won’t be overturned by the court decision in these cases. So, if your state or city does not already have LGBTQ protections in its anti-discrimination laws (or doesn’t even have any anti-discrimination laws at all) band together and make noise. Get them to pass one.
- Tell everyone you can about this. Be loud. Silence will let them get away with it.
- Fight back. If it all goes to hell in your state next June, boycott any business that fires someone for being trans, picket any apartment complex who evicts a gay couple. Broadcast their bigotry, shame them publicly. Make noise.
- Reach out to your lawmakers and tell them that you support the Equality Act and think it needs to be improved and passed. And “improved” is key. Since it hasn’t passed yet, there’s still time to make it better. So tell them they need to make it better. (At the same time, don’t let perfect be the enemy of the good. As it stands today, it’s a vast improvement over existing law, so work to get the Equality Act passed, even if they don’t fix it.)
But Wait… There’s More!
Another interesting (and unexpected) side story related to this which came up after I’d written most of this post is that ratification of the ERA is now within reach, thanks to Virginia going fully blue. While it’s very likely that VA will vote to ratify in one of their first actions in January, there’s some haziness about whether or not it will count. That means it will be a fascinating backdrop for the presidential election, with one side fully supporting ratification, maybe even with a woman carrying the flag for the second time in a row, and the other side being forced to explain why they don’t think women are equal, while they run a disgusting misogynist and/or someone who refuses to even eat with women. Popcorn time!
But… What’s the ERA, you ask? That’s a fair question, because it hasn’t been talked about much since it was killed by a pack of anti-feminists back in the 70s. It’s the Equal Rights Amendment, a constitutional amendment that reads “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”
The haziness surrounding ratification is twofold: First, the original congressional language had a deadline, which has long since passed. Second, some states which ratified it early on have since rescinded their ratification. Proponents of ratification will note that the original deadline was extended once, and can be extended again, if needed, and beyond that, a deadline may not even be valid. As for rescinding the ratification, it’s not clear whether or not a state can even do that. At any rate, it’s bound to head to court and make a lot of noise along the way.
As you may have noticed, the language is very similar to the vague meaning of “sex” that the Equality Act is trying to fix. Will the ERA protect gender identity and sexual orientation? That’s unclear. It’s open to the same interpretation and court opinions that come up in the Civil Rights Act. In fact, the Supreme Court decision in those cases I mentioned above, whichever way it goes, will probably be the precedent at work, should the ERA actually get ratified and take effect.
So you know what that means, right?
Once the ERA is ratified, we’re going to need the ERA 2 to explicitly include what the original ERA leaves out.