2020 was a banner year for LGBTQ rights, with the Supreme Court declaring last June that federal law prohibits workplace discrimination based on sexual orientation or gender identity. Congress could make this year even more significant by codifying and expanding on that landmark ruling.
House Democrats on Thursday released the Equality Act, a bill that would bar LGBTQ discrimination in employment, education, credit, jury service, federal funding, housing and public accommodations. President Joe Biden on Friday urged Congress to pass it quickly, and the House may vote on it as soon as this week. But it faces an uncertain fate in the Senate, where it would need to attract the support of 10 Republicans to overcome a filibuster. A solution must be found; LGBTQ people have waited long enough for comprehensive anti-discrimination protections.
The Supreme Court's 2020 ruling barred LGBTQ discrimination only in hiring, firing and workplace treatment. It remains legal to discriminate against LGBTQ people in a large number of states in an astonishing variety of circumstances. "In 29 states, Americans can still be evicted, be thrown out of a restaurant, or be denied a loan because of who they are or whom they love," said Rep. David Cicilline, D-R.I., the Equality Act's House sponsor. Though many states have anti-discrimination laws, some lack comprehensive policies, and some offer few protections at all. Cicilline's office pointed out that it is legal in 27 states to deny people housing based on their LGBTQ status, while 31 states fail to bar discrimination in education and 41 allow discrimination in jury service.
Even the Supreme Court's extension of employment discrimination protections remains tenuous until written into law; a future court could overturn the ruling. And Biden's recent executive order expanding LGBTQ protections where possible under federal law and regulation is an even more fragile victory. Neither is a substitute for a clear, comprehensive civil rights law.
Passing such an act would not only prevent LGBTQ people from being denied essential services based on prejudice; it would also send a message to the rest of the world. Much of the planet remains a dangerous place for LGBTQ people, who face official retribution if they dare to be themselves in public. It has taken time for U.S. democracy to grow into the notion that discrimination based on innate characteristics is particularly abhorrent.
Some senators argue that the Equality Act lacks sufficient religious-liberty protections. But engaging in public commerce comes with a price: Business owners cannot pay their employees less than the minimum wage. A cake shop owner must follow health and safety regulations even if he does not believe they are necessary. A landlord should not be able to refuse to rent an apartment to a gay couple. The government should respect private worship, but it also has a high interest in ensuring activities occurring in the public square are fair and equitable.
The Senate should take up the Equality Act. Amendments might be needed to attract enough votes. Then, as long as the protections it would offer remain strong, it should pass.