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The Equality Act Is 46 Years In The Making. The US Senate Should Pass It Now

The Supreme Court ruled that same-sex couples can marry nationwide in 2015. (Michael Rowley/Ghetty)
The Supreme Court ruled that same-sex couples can marry nationwide in 2015. (Michael Rowley/Ghetty)

On March 17, Stella Keating, a 16-year-old transgender girl from Washington, was the star of the Senate Judiciary Committee’s hearings on the Equality Act of 2021. Stella is a member of The GenderCool Project, a movement to “replace opinions with real experiences meeting transgender and nonbinary youth who are thriving.”

Noting that she lives in one of the states whose laws protect LGBTQ people, she testified of her concerns about where she is considering going to college, noting that less than half of states offer people like her equal protection under the law.

“Right now, I could be denied medical care or be evicted for simply being transgender in many states … What if I am offered a dream job in a state where I can be discriminated against? ... I represent America’s future. We are the next generation of small business owners, software engineers, scientists, teachers, nurses, presidents.”

As the bisexual mother of a queer young adult, Ms. Keating’s powerful testimony before the Senate Judiciary Committee resonated deeply with me.

The outspoken feminist, Bella Abzug, and the long-closeted then soon-to-be mayor of New York City, Ed Koch, first introduced an anti-discrimination bill protecting LGBTQ Americans in the U.S. House in 1974. The bill was dead on arrival; its introduction did not even merit mention in any media other than in the Congressional Record. Federal LGBTQ anti-discrimination legislation has been introduced in all but one session of Congress since. It passed twice in the House and missed passage in the U.S. Senate in 1996 by a single vote. The Senate is poised to make history, now, with the Equality Act of 2021.

President Biden’s campaign platform heralded the Equality Act as “the best vehicle for ensuring equal rights under the law for LGBTQ Americans.” Its passage is a top legislative priority for his first 100 days. The Equality Act would protect individuals in the LGBTQ community from discrimination on the basis of sexual orientation or gender identity in employment, housing, credit, education, public accommodations and services, federally funded programs, and jury service. It was introduced in the House on February 18 and passed on February 25. It was introduced in the Senate on February 23. While Democrats favoring passage control the Senate by the single tie-breaking vote of Vice President Kamala Harris, under the current filibuster rule, 60 votes are required for passage. This means that every Democrat and at least 10 Republicans need to vote in favor of the bill.

There is currently no federal legislation protecting LGBTQ Americans against discrimination, and 27 states lack a state anti-discrimination law. While recent rulings prohibit housing and employment discrimination, they do not prohibit discrimination in education, health care, or public accommodations and services.

More troubling than the absence of federal and, in the majority of cases, state anti-discrimination laws, anti-transgender legislation has been introduced in nearly half of the states, including bills in more than 15 states that would prohibit or even criminalize certain medical care for transgender youth. On March 26, the governor of Arkansas signed into law a bill that allows doctors and other health professionals, including EMTs, to refuse to treat LGBTQ people on moral grounds. The Equality Act is an important step to end the uncertain patchwork of state laws on discrimination on the basis of gender identity.

Public attitudes regarding LGBTQ rights have changed considerably since the first time that the bill was introduced in 1974, in part due to more and more LGBTQ people coming out, putting the face of an individual family member, friend or colleague on the issue. Stella and other “Champions” at The GenderCool Project are continuing to drive this shift.

According to the Public Religion Research Institute (PRRI), more than 75% of Americans support the Equality Act, including a majority in each state and a majority of Democrats, Republicans and independents. The Act has been endorsed by more than 630 civil rights, education, healthcare and religious organizations. It has the support of the Business Coalition for the Equality Act, which is comprised of more than 380 companies operating in all 50 states with aggregate revenues exceeding $6 trillion and employing more than 13 million people. An additional 60 business organizations, including the National Association of Manufacturers, the National Restaurant Association, and the U.S. Chamber of Commerce, have endorsed the bill. The broad bipartisan support for the bill should translate into Senate passage.

It is time to recognize that rights are not like pie -- legislating equality for all Americans does not take away the rights of those already protected.

Reminiscent of Phyllis Schlafly’s arguments in the 1970s against the Equal Rights Amendment, some conservative groups argue that adoption of the bill will undercut existing legal protections for girls and women. Faith-based organizations are split on the Equality Act, with mainstream Protestant and progressive religious groups favoring the bill and evangelical Christian, Catholic and Orthodox Jewish groups opposing. The bill does contain a religious exemption, but some critics claim it is too narrow. Regardless, it is time to recognize that rights are not like pie — legislating equality for all Americans does not take away the rights of those already protected.

Judiciary Committee Chairman, Sen. Dick Durbin (D-IL), closed the hearing on March 17, with these remarks: “I do believe that people who want to blatantly discriminate and use religion as their weapon have gone too far. We have to have limits on what they can do. Remember, the Ku Klux Klan was not burning question marks, they were burning the cross.”

Just as religious belief cannot excuse discrimination based on race, it should not excuse discrimination based on sexual orientation or gender identity.

The majority of Americans and the business organizations that support the Equality Act agree with Stella Keating. It is time for the Senate to do the same.

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Julie Allen Cognoscenti contributor
Julie Allen is a senior fellow in the Harvard Advanced Leadership Initiative.  

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