What is the Equality Act?
The Equality Act is a bill which would amend the Civil Rights Act, the Fair Housing Act, and several other laws, to explicitly include sexual orientation and gender identity as protected classes under the law. It also guarantees access to bathrooms and locker rooms in accordance with a person’s gender identity, explicitly protects intersex people, expands the list of the types of businesses considered public accommodations, and prohibits sex-based discrimination in some of the areas which did not cover sex previously.
Here is the text of the Equality Act of 2021.
Unfortunately, the Equality Act uses an outdated and limited definition for sexual orientation: “The term ‘sexual orientation’ means homosexuality, heterosexuality, or bisexuality.” This wording does not reflect the current understanding and diversity of experiences. Notably, it leaves out asexual and pansexual people, and makes no mention of romantic or affectional orientation.
How does the Bostock decision affect the Equality Act?
In June 2020, in the case of Bostock v. Clayton County, the Supreme Court held that discrimination on the basis of sexual orientation or gender identity was a form of discrimination on the basis of sex, and therefore was prohibited by the Civil Rights Act. On the face of it, that seems like it would render the Equality Act moot, but this is not the case. The Supreme Court only ruled on employment law within the Civil Rights Act. While the decision sets a very strong precedent that sexual orientation or gender identity discrimination would be prohibited under all aspects of the Civil Rights Act (and potentially other laws, like the Fair Housing Act) under the same rationale, that has not yet been decided. Furthermore, since it is only the opinion of the court, a future court on a different case could decided to overturn the Bostock decision.
The Equality Act would make it clear that discrimination on the basis of gender identity or sexual orientation is prohibited in many areas, in a way that is not open to interpretation.
Beyond that, the Bostock decision was written in such a way that required attraction to be present, which left open the possibility that aromantic or asexual people would not be covered by its protection.
What is the current status of the Equality Act?
As of this writing, the Equality Act has been passed the House, with a vote of 224-206, on Feb. 25th. It has been reintroduced in the Senate, where it will likely languish due to the filibuster.
What is your goal?
We fully support the intent of Equality Act, and want the definition of “sexual orientation” to be more inclusive and forward-looking, so that the bill lives up to that intent. What we are proposing is a drop-in replacement for a single definition. As it doesn’t require massive structural changes or a complete rewrite of the bill, and the language we are proposing is based on the wording of an existing law, The New York City Human Rights Law, we believe our goal is attainable.
Why do you want asexuality, aromanticism, and pansexuality explicitly mentioned in this legislation?
As it is currently written, heterosexuality is explicitly protected by the Equality Act, yet these are left out and would not be protected. The principle of this legislation is to protect all people from potential discrimination based on their orientation. We support this principle, and in order for this legislation to truly uphold it, the definition of “sexual orientation” must include all orientations. Naming asexuality, aromanticism, and pansexuality explicitly in our revised definition acknowledges that human sexuality is multi-faceted and that attraction exists along many spectra. Our proposed definition of “sexual orientation” was written to represent the broad range of sexualities that exist, and to proactively allow room for labels that haven’t yet been discovered so that this Act can continue protect everyone as intended, for generations to come.
Why are you focused on this law instead of some other issue?
There are certainly a lot of issues of great importance to members of our community. Many of them would arguably have greater immediate impact than changing this law. The primary reason we are focused on this law instead of others is that the this bill is already in motion, which presents us with an opportunity. Many civil rights activists and queer organizations are fully committed and working toward the passage of the Equality Act. We can work with these groups to improve the language in the bill that gets reintroduced in the next Congress. Then we can work with them to support its ultimate passage.
Beyond that, the definitions found in the Civil Rights Act, which the Equality Act will amend, are referenced throughout federal law. This means that as future federal laws are written, they will likely reference these same definitions. And the federal definitions will serve as templates to guide state and local lawmakers. Our success now will make those laws more inclusive in the future. Furthermore, since our language is descriptive and open-ended, we have an opportunity to help make this law over people well into the future, as our understanding of human sexuality and the words we use to describe it inevitably change over time.
Why are you only focused on sexual orientation? What about gender identity?
The Equality Act’s existing language on gender identity appears to be a modern and inclusive definition:
“The term ‘gender identity’ means the gender-related identity, appearance, mannerisms, or other gender-related characteristics of an individual, regardless of the individual’s designated sex at birth.”
What about Finding #12?
The 2021 version of the Equality Act included a new finding, which adopted some of our language. Here is the text of Finding #12:
(12) Discrimination based on sexual orientation includes discrimination based on an individual’s actual or perceived romantic, emotional, physical, or sexual attraction to other persons, or lack thereof, on the basis of gender. LGBTQ people, including gender nonbinary people, also commonly experience discrimination because of sex-based stereotypes. Many people are subjected to discrimination because of others’ perceptions or beliefs regarding their sexual orientation. Even if these perceptions are incorrect, the identity imputed by others forms the basis of discrimination.
This is an important description of various types of discrimination. And notably, it does include a substantial part of the language we proposed. Unfortunately, it is just a finding. Findings are used to explain why Congress feels a law needs to be written. They’re an explanation of legislative intent. But they’re not law. They’re not binding. Some judges may look to the findings to glean the intent of Congress when a law is unclear or ambiguous. Other judges avoid the practice. Either way, that’s largely irrelevant here, as the plain wording of the law is clear that the protections only extend to discrimination against “homosexuality, heterosexuality, or bisexuality”. The finding implies that the need for protection is broad, but the actual text keeps it narrow. There would be a strong legal argument to be made that if Congress truly wanted to expand the protections to the areas that are outlined in Finding #12, that they would have done so.