Protesters gather outside the Supreme Court in Washington where the Court on Oct. 8, 2019, as the court heard arguments in the first case of LGBT rights since the retirement of Supreme Court Justice Anthony Kennedy. Susan Walsh/AP
The House of Representatives is set to vote Wednesday on the Equality Act, a bill that would ban discrimination against people based on sexual orientation and gender identity. It would also substantially expand the areas to which those discrimination protections apply.
It's a bill that President Biden said on the campaign trail would be one of his top legislative priorities for the first 100 days of his presidency.
When House Democrats introduced the bill last week, Biden reiterated his support in a statement: "I urge Congress to swiftly pass this historic legislation," he wrote. "Every person should be treated with dignity and respect, and this bill represents a critical step toward ensuring that America lives up to our foundational values of equality and freedom for all."
But it's also controversial — while the Equality Act has broad support among Democrats, many Republicans oppose it, fearing that it would infringe upon religious objections.
Here's a quick rundown of what the bill would do, and what chance it has of passing.
What would the Equality Act do?
The Equality Act would amend the 1964 Civil Rights Act to explicitly prevent discrimination based on sexual orientation and gender identity.
The bill has been introduced multiple times before and passed the House in 2019. However, the law's impact would be different in practical terms now than it was then.
That's because the Supreme Court ruled in June of last year, in Bostock v. Clayton County, that the protections guaranteed by the 1964 Civil Rights Act on the basis of sex also extend to discrimination against lesbian, gay, and transgender Americans. The logic was that a man who, for example, loses his job because he has a same-sex partner is facing discrimination on the basis of sex — that, were he a woman, he wouldn't have faced that discrimination.
This act would explicitly enshrine those nondiscrimination protections into law for sexual orientation and gender identity, rather than those protections being looped in under the umbrella of "sex." However, the Equality Act would also substantially expand those protections.
The Civil Rights Act covered discrimination in certain areas, like employment and housing. The Equality Act would expand that to cover federally-funded programs, as well as "public accommodations" — a broad category including retail stores and stadiums, for example.
("Public accommodations" is also a category that the bill broadens, to include online retailers and transportation providers, for example. Because of that, many types of discrimination the Civil Rights Act currently prohibits — like racial or religious discrimination — would now also be explicitly covered at those types of establishments.)
One upshot of all of this, then, is that the Equality Act would affect businesses like flower shops and bakeries that have been at the center of discrimination court cases in recent years — for example, a baker who doesn't want to provide a cake for a same-sex wedding.
Importantly, the bill also explicitly says that it trumps the Religious Freedom Restoration Act (commonly known by its acronym RFRA). The law, passed in 1993, set a higher bar for the government to defend laws if people argued those laws infringed upon religious freedom.
Under the Equality Act, an entity couldn't use RFRA to challenge the act's provisions, nor could it use RFRA as a defense to a claim made under the act
What proponents say
Supporters say that the Equality Act simply extends basic, broadly accepted tenets of the Civil Rights Act to classes of people that the bill doesn't explicitly protect.
"Just as [a business] would not be able to turn away somebody for any other prohibited reason in the law, they would not be able to do that for LGBTQ people either. And we think that's a really important principle to maintain," said Ian Thompson, senior legislative representative at the ACLU.
The bill also would be national, covering states that do not have LGBTQ anti-discrimination laws. According to the Human Rights Campaign, an LGBTQ advocacy organization, 27 states do not have those laws.
Supporters additionally say the bill would cement protections that could otherwise be left up to interpretation.
"President Biden issued an executive order directing agencies to appropriately interpret the Bostock ruling to apply not just to employment discrimination, but to other areas of law where sex discrimination is prohibited, including education, housing, and health care," the Human Rights Campaign wrote in support of the bill. "However, a future administration may refuse to interpret the law this way, leaving these protections vulnerable."
And with regard to RFRA, proponents argue that the bill would keep entities from using that law as a "license to discriminate," wording echoed by Human Rights Watch and many other Equality Act supporters.
What opponents say
The question of religious freedom is the main issue animating people against the Equality Act.
Douglas Laycock, a law professor at the University of Virginia, has criticized the Equality Act since its 2019 introduction. He told NPR in an email that the law is "less necessary" now, after the Bostock decision.
Furthermore, while he supports adding sexual orientation and gender identity to federal anti-discrimination statutes, Laycock believes that this bill goes too far in limiting people's ability to defend themselves against discrimination claims.
"It protects the rights of one side, but attempts to destroy the rights of the other side," he said. "We ought to protect the liberty of both sides to live their own lives by their own identities and their own values."
Another key fear among opponents of the Equality Act is that it would threaten businesses or organizations that have religious objections to serving LGBTQ people, forcing them to choose between operating or following their beliefs.
Could it pass?
The Democratic-led House passed the Equality Act in 2019 with unanimous support from Democrats (as well as support from eight Republicans), so there's good reason to think it would pass in the current Democratic House as well.
The Senate is more uncertain. Democrats in the Senate broadly support the bill. Sens. Kyrsten Sinema of Arizona and Joe Manchin of West Virginia, among the most moderate Democratic senators, signed a letter in support of it last year.
But the bill would need 60 votes to avoid a filibuster in the senate. Maine Republican Sen. Susan Collins cosponsored the bill in 2019, but not all of her fellow, more moderate Republicans are on board. Utah Sen. Mitt Romney, for example, told the Washington Blade that he won't support the act, citing religious liberty.
"Sen. Romney believes that strong religious liberty protections are essential to any legislation on this issue, and since those provisions are absent from this particular bill, he is not able to support it," his spokesperson told the Blade.
It's uncertain how other moderate Republicans might vote. Alaska Sen. Lisa Murkowski, who supported the narrower Employment Nondiscrimination Act (ENDA) in 2013, has yet to respond to NPR's questions about her support of the Equality Act.
And while Ohio Sen. Rob Portman, who likewise supported ENDA, didn't give a definitive answer on his support, his response made it clear that he could object to it on religious grounds.
"Rob opposes discrimination of any kind, and he also believes that it's important that Congress does not undermine protections for religious freedom," his office said in a statement. "He will review any legislation when and if it comes up for a vote in the Senate."
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