Equality Act

II Calendar No. 9 117TH CONGRESS 1ST SESSION H. R. 5 IN THE SENATE OF THE UNITED STATES MARCH 1, 2021 Received MARCH 2 (legislative day, MARCH 1), 2021 Read the first time MARCH 2, 2021 Read the second time and placed on the calendar AN ACT To prohibit discrimination on the basis of sex, gender identity, and sexual orientation, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Equality Act’’. 4 SEC. 2. FINDINGS AND PURPOSE. 5 (a) FINDINGS.—Congress finds the following: 6 (1) Discrimination can occur on the basis of the 7 sex, sexual orientation, gender identity, pregnancy, 8 VerDate Sep 11 2014 23:37 Mar 02, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H5.PCS H5 kjohnson on DSK79L0C42PROD with BILLS 2 HR 5 PCS childbirth, or a related medical condition of an indi- 1 vidual, as well as because of sex-based stereotypes. 2 Each of these factors alone can serve as the basis 3 for discrimination, and each is a form of sex dis- 4 crimination. 5 (2) A single instance of discrimination may 6 have more than one basis. For example, discrimina- 7 tion against a married same-sex couple could be 8 based on the sex stereotype that marriage should 9 only be between heterosexual couples, the sexual ori- 10 entation of the two individuals in the couple, or 11 both. In addition, some persons are subjected to dis- 12 crimination based on a combination or the intersec- 13 tion of multiple protected characteristics. Discrimi- 14 nation against a pregnant lesbian could be based on 15 her sex, her sexual orientation, her pregnancy, or on 16 the basis of multiple factors. 17 (3) Lesbian, gay, bisexual, transgender, and 18 queer (referred to as ‘‘LGBTQ’’) people commonly 19 experience discrimination in securing access to pub- 20 lic accommodations—including restaurants, senior 21 centers, stores, places of or establishments that pro- 22 vide entertainment, health care facilities, shelters, 23 government offices, youth service providers including 24 adoption and foster care providers, and transpor- 25 VerDate Sep 11 2014 23:37 Mar 02, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H5.PCS H5 kjohnson on DSK79L0C42PROD with BILLS 3 HR 5 PCS tation. Forms of discrimination include the exclusion 1 and denial of entry, unequal or unfair treatment, 2 harassment, and violence. This discrimination pre- 3 vents the full participation of LGBTQ people in so- 4 ciety and disrupts the free flow of commerce. 5 (4) Women also have faced discrimination in 6 many establishments such as stores and restaurants, 7 and places or establishments that provide other 8 goods or services, such as entertainment or transpor- 9 tation, including sexual harassment, differential pric- 10 ing for substantially similar products and services, 11 and denial of services because they are pregnant or 12 breastfeeding. 13 (5) Many employers already and continue to 14 take proactive steps, beyond those required by some 15 States and localities, to ensure they are fostering 16 positive and respectful cultures for all employees. 17 Many places of public accommodation also recognize 18 the economic imperative to offer goods and services 19 to as many consumers as possible. 20 (6) Regular and ongoing discrimination against 21 LGBTQ people, as well as women, in accessing pub- 22 lic accommodations contributes to negative social 23 and economic outcomes, and in the case of public ac- 24 VerDate Sep 11 2014 23:37 Mar 02, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H5.PCS H5 kjohnson on DSK79L0C42PROD with BILLS 4 HR 5 PCS commodations operated by State and local govern- 1 ments, abridges individuals’ constitutional rights. 2 (7) The discredited practice known as ‘‘conver- 3 sion therapy’’ is a form of discrimination that harms 4 LGBTQ people by undermining individuals’ sense of 5 self worth, increasing suicide ideation and substance 6 abuse, exacerbating family conflict, and contributing 7 to second-class status. 8 (8) Both LGBTQ people and women face wide- 9 spread discrimination in employment and various 10 services, including by entities that receive Federal fi- 11 nancial assistance. Such discrimination— 12 (A) is particularly troubling and inappro- 13 priate for programs and services funded wholly 14 or in part by the Federal Government; 15 (B) undermines national progress toward 16 equal treatment regardless of sex, sexual ori- 17 entation, or gender identity; and 18 (C) is inconsistent with the constitutional 19 principle of equal protection under the Four- 20 teenth Amendment to the Constitution of the 21 United States. 22 (9) Federal courts have widely recognized that, 23 in enacting the Civil Rights Act of 1964, Congress 24 validly invoked its powers under the Fourteenth 25 VerDate Sep 11 2014 23:37 Mar 02, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H5.PCS H5 kjohnson on DSK79L0C42PROD with BILLS 5 HR 5 PCS Amendment to provide a full range of remedies in 1 response to persistent, widespread, and pervasive 2 discrimination by both private and government ac- 3 tors. 4 (10) Discrimination by State and local govern- 5 ments on the basis of sexual orientation or gender 6 identity in employment, housing, and public accom- 7 modations, and in programs and activities receiving 8 Federal financial assistance, violates the Equal Pro- 9 tection Clause of the Fourteenth Amendment to the 10 Constitution of the United States. In many cir- 11 cumstances, such discrimination also violates other 12 constitutional rights such as those of liberty and pri- 13 vacy under the due process clause of the Fourteenth 14 Amendment. 15 (11) Individuals who are LGBTQ, or are per- 16 ceived to be LGBTQ, have been subjected to a his- 17 tory and pattern of persistent, widespread, and per- 18 vasive discrimination on the bases of sexual orienta- 19 tion and gender identity by both private sector and 20 Federal, State, and local government actors, includ- 21 ing in employment, housing, and public accommoda- 22 tions, and in programs and activities receiving Fed- 23 eral financial assistance. This discrimination inflicts 24 a range of tangible and intangible harms, sometimes 25 VerDate Sep 11 2014 23:37 Mar 02, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H5.PCS H5 kjohnson on DSK79L0C42PROD with BILLS 6 HR 5 PCS even including serious physical injury or death. An 1 explicit and comprehensive national solution is need- 2 ed to address this discrimination, including the full 3 range of remedies available under the Civil Rights 4 Act of 1964. 5 (12) Discrimination based on sexual orientation 6 includes discrimination based on an individual’s ac- 7 tual or perceived romantic, emotional, physical, or 8 sexual attraction to other persons, or lack thereof, 9 on the basis of gender. LGBTQ people, including 10 gender nonbinary people, also commonly experience 11 discrimination because of sex-based stereotypes. 12 Many people are subjected to discrimination because 13 of others’ perceptions or beliefs regarding their sex- 14 ual orientation. Even if these perceptions are incor- 15 rect, the identity imputed by others forms the basis 16 of discrimination. 17 (13) Numerous provisions of Federal law ex- 18 pressly prohibit discrimination on the basis of sex, 19 and Federal courts and agencies have correctly in- 20 terpreted these prohibitions on sex discrimination to 21 include discrimination based on sexual orientation, 22 gender identity, and sex stereotypes. In particular, 23 the Supreme Court of the United States correctly 24 held in Bostock v. Clayton County, 140 S. Ct. 1731 25 VerDate Sep 11 2014 23:37 Mar 02, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H5.PCS H5 kjohnson on DSK79L0C42PROD with BILLS 7 HR 5 PCS (2020) that the prohibition on employment discrimi- 1 nation because of sex under title VII of the Civil 2 Rights Act of 1964 inherently includes discrimina- 3 tion because of sexual orientation or transgender 4 status. 5 (14) This Act makes explicit that existing Fed- 6 eral statutes prohibiting sex discrimination in em- 7 ployment (including in access to benefits), 8 healthcare, housing, education, credit, and jury serv- 9 ice also prohibit sexual orientation and gender iden- 10 tity discrimination. 11 (15) LGBTQ people often face discrimination 12 when seeking to rent or purchase housing, as well as 13 in every other aspect of obtaining and maintaining 14 housing. LGBTQ people in same-sex relationships 15 are often discriminated against when two names as- 16 sociated with one gender appear on a housing appli- 17 cation, and transgender people often encounter dis- 18 crimination when credit checks or inquiries reveal a 19 former name. 20 (16) National surveys, including a study com- 21 missioned by the Department of Housing and Urban 22 Development, show that housing discrimination 23 against LGBTQ people is very prevalent. For in- 24 stance, when same-sex couples inquire about housing 25 VerDate Sep 11 2014 23:37 Mar 02, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H5.PCS H5 kjohnson on DSK79L0C42PROD with BILLS 8 HR 5 PCS that is available for rent, they are less likely to re- 1 ceive positive responses from landlords. A national 2 matched-pair testing investigation found that nearly 3 one-half of same-sex couples had encountered ad- 4 verse, differential treatment when seeking elder 5 housing. According to other studies, transgender 6 people have half the homeownership rate of non- 7 transgender people and about 1 in 5 transgender 8 people experience homelessness. Another survey 9 found that 82 percent of gender nonbinary people 10 experiencing homelessness lacked access to shelter. 11 (17) As a result of the absence of explicit prohi- 12 bitions against discrimination on the basis of sexual 13 orientation and gender identity, credit applicants 14 who are LGBTQ, or are perceived to be LGBTQ, 15 have unequal opportunities to establish credit. 16 LGBTQ people can experience being denied a mort- 17 gage, credit card, student loan, or many other types 18 of credit simply because of their sexual orientation 19 or gender identity. 20 (18) Numerous studies demonstrate that 21 LGBTQ people, especially transgender people and 22 women, are economically disadvantaged and at a 23 higher risk for poverty compared with other groups 24 of people. For example, the poverty rate for older 25 VerDate Sep 11 2014 23:37 Mar 02, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H5.PCS H5 kjohnson on DSK79L0C42PROD with BILLS 9 HR 5 PCS women in same-sex couples is twice that of older dif- 1 ferent-sex couples. 2 (19) The right to an impartial jury of one’s 3 peers and the reciprocal right to jury service are 4 fundamental to the free and democratic system of 5 justice in the United States and are based in the 6 Bill of Rights. There is, however, an unfortunate 7 and long-documented history in the United States of 8 attorneys discriminating against LGBTQ individ- 9 uals, or those perceived to be LGBTQ, in jury selec- 10 tion. Failure to bar peremptory challenges based on 11 the actual or perceived sexual orientation or gender 12 identity of an individual not only erodes a funda- 13 mental right, duty, and obligation of being a citizen 14 of the United States, but also unfairly creates a sec- 15 ond class of citizenship for LGBTQ victims, wit- 16 nesses, plaintiffs, and defendants. 17 (20) Numerous studies document the shortage 18 of qualified and available homes for the approxi- 19 mately 424,000 youth in the child welfare system 20 and the negative outcomes for the many youth who 21 live in group care as opposed to a loving home or 22 who age out of care without a permanent family 23 placement. Although same-sex couples are 7 times 24 more likely to foster or adopt than their different- 25 VerDate Sep 11 2014 23:37 Mar 02, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H5.PCS H5 kjohnson on DSK79L0C42PROD with BILLS 10 HR 5 PCS sex counterparts, many child-placing agencies refuse 1 to serve same-sex couples and LGBTQ individuals. 2 This has resulted in a reduction of the pool of quali- 3 fied and available homes for youth in the child wel- 4 fare system who need placement on a temporary or 5 permanent basis. It also sends a negative message 6 about LGBTQ people to children and youth in the 7 child welfare system about who is, and who is not, 8 considered fit to be a parent. While the priority 9 should be on providing the supports necessary to 10 keep children with their families, when removal is re- 11 quired, barring discrimination in foster care and 12 adoption will increase the number of homes available 13 to foster children waiting for foster and adoptive 14 families. 15 (21) LGBTQ youth are overrepresented in the 16 foster care system by at least a factor of two and 17 report twice the rate of poor treatment while in care 18 compared to their non-LGBTQ counterparts. 19 LGBTQ youth in foster care have a higher average 20 number of placements, higher likelihood of living in 21 a group home, and higher rates of hospitalization for 22 emotional reasons and of juvenile justice involvement 23 than their non-LGBTQ peers because of the high 24 level of bias and discrimination that they face and 25 VerDate Sep 11 2014 23:37 Mar 02, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H5.PCS H5 kjohnson on DSK79L0C42PROD with BILLS 11 HR 5 PCS the difficulty of finding affirming foster placements. 1 Further, due to their physical distance from friends 2 and family, traumatic experiences, and potentially 3 unstable living situations, all youth involved with 4 child welfare services are at risk for being targeted 5 by traffickers seeking to exploit children. Barring 6 discrimination in child welfare services will ensure 7 improved treatment and outcomes for LGBTQ foster 8 children. 9 (22) Courts consistently have found that the 10 government has a compelling interest in preventing 11 and remedying discrimination. For example, the Su- 12 preme Court of the United States found there to be 13 a compelling government interest in eliminating sex 14 discrimination in Board of Directors of Rotary 15 International v. Rotary Club of Duarte, 481 U.S. 16 537, 549 (1987). Because discrimination based on 17 sexual orientation or gender identity inherently is a 18 form of sex discrimination, as held in Bostock v. 19 Clayton County, 140 S. Ct. 1731 (2020), this Act 20 furthers the compelling government interest in pro- 21 viding redress for the serious harms to mental and 22 physical health, financial secur [Text truncated for display. Full text available on Congress.gov.]