Segregated schools were outlawed long ago, so why are trans students still shut out of the bathroom? And why, if sex discrimination is illegal, are workers fired because their spouses are the “wrong” gender? The language of the Constitution in many cases fails to contemplate gay, trans, and queer identities, and rights advocates say an update is way overdue.
So a much-needed addendum to the landmark 1964 Civil Rights Act has been reintroduced in Congress, providing explicit protections against discrimination on the basis of gender identity and sexual orientation, in line with the framework that has applied to categories of sex and race for decades.
The Equality Act would leave no ambiguity that the fundamental foundation of equality under the Constitution applies equally to LGBTQ communities as it does to women, people of color, immigrants, and religious groups. Moreover, the legislation would amend the existing 1995 Religious Freedom Restoration Act, which rolled back civil-rights mandates for individuals and institutions claiming religiously based exemptions, so that the new law could prevent religion from being used as a pretext for discrimination “on the basis of sex, sexual orientation, or gender identity.” While the RFRA remains on the books, the Equality Act would at least shift the burden of proof onto the employer or institution claiming a religious exemption rather than on the individual to prove they’re entitled to full constitutional protection.
The amendment would effectively change the Civil Rights Act, along with the Fair Housing Act, the Equal Credit Opportunity Act, the Jury Selection and Services Act, and other anti-discrimination laws related to public-sector employment and access to public facilities, to cover “sexual orientation and gender identity as protected characteristics.” It would officially expand protections for public spaces and ensure equal access to federally funded programs, including health and social benefits.
It would both simplify and complicate our current legal crisis surrounding the rights of, for example, trans teens shut out of the locker room that fits their gender, or same-sex couples barred from insurance coverage, under an administration that has shown unprecedented hostility to the idea of equal justice.
The struggle for equal protection is more acute than ever because Trump has just signed a major executive order on “religious freedom” aimed at expanding the power of the religious right to influence federal politics. A more sweeping leaked draft version that The Nation published earlier this year had aimed to grant broad legal exemptions for legal and workplace discrimination under the pretext of acting on religious belief. Though the version signed by Trump today does not include those most severely discriminatory provisions, it would enable religious institutions to participate more directly in electoral campaigns, potentially opening the path to further rollbacks on LGBTQ rights, driven by religious hard-liners fueling Trump’s Christian, right-wing support base.