Equality Act

II 117TH CONGRESS 1ST SESSION S. 393 To prohibit discrimination on the basis of sex, gender identity, and sexual orientation, and for other purposes. IN THE SENATE OF THE UNITED STATES FEBRUARY 23, 2021 Mr. MERKLEY (for himself, Ms. BALDWIN, Mr. BOOKER, Mr. BENNET, Mr. BLUMENTHAL, Mr. BROWN, Ms. CANTWELL, Mr. CARDIN, Mr. CARPER, Mr. CASEY, Mr. COONS, Ms. CORTEZ MASTO, Ms. DUCKWORTH, Mr. DURBIN, Mrs. FEINSTEIN, Mrs. GILLIBRAND, Ms. HASSAN, Mr. HEIN- RICH, Mr. HICKENLOOPER, Ms. HIRONO, Mr. KAINE, Mr. KELLY, Mr. KING, Ms. KLOBUCHAR, Mr. LEAHY, Mr. LUJA´N, Mr. MARKEY, Mr. MENENDEZ, Mr. MURPHY, Mrs. MURRAY, Mr. OSSOFF, Mr. PADILLA, Mr. PETERS, Mr. REED, Ms. ROSEN, Mr. SANDERS, Mr. SCHATZ, Mr. SCHUMER, Mrs. SHAHEEN, Ms. SINEMA, Ms. SMITH, Ms. STABENOW, Mr. TESTER, Mr. VAN HOLLEN, Mr. WARNER, Mr. WARNOCK, Ms. WAR- REN, Mr. WHITEHOUSE, and Mr. WYDEN) introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL 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 VerDate Sep 11 2014 17:22 Mar 12, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S393.IS S393 2 •S 393 IS SEC. 2. FINDINGS AND PURPOSE. 1 (a) FINDINGS.—Congress finds the following: 2 (1) Discrimination can occur on the basis of the 3 sex, sexual orientation, gender identity, pregnancy, 4 childbirth, or a related medical condition of an indi- 5 vidual, as well as because of sex-based stereotypes. 6 Each of these factors alone can serve as the basis 7 for discrimination, and each is a form of sex dis- 8 crimination. 9 (2) A single instance of discrimination may 10 have more than one basis. For example, discrimina- 11 tion against a married same-sex couple could be 12 based on the sex stereotype that marriage should 13 only be between heterosexual couples, the sexual ori- 14 entation of the two individuals in the couple, or 15 both. In addition, some persons are subjected to dis- 16 crimination based on a combination or the intersec- 17 tion of multiple protected characteristics. Discrimi- 18 nation against a pregnant lesbian could be based on 19 her sex, her sexual orientation, her pregnancy, or on 20 the basis of multiple factors. 21 (3) Lesbian, gay, bisexual, transgender, and 22 queer (referred to as ‘‘LGBTQ’’) people commonly 23 experience discrimination in securing access to pub- 24 lic accommodations—including restaurants, senior 25 centers, stores, places of or establishments that pro- 26 VerDate Sep 11 2014 17:22 Mar 12, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S393.IS S393 3 •S 393 IS vide entertainment, health care facilities, shelters, 1 government offices, youth service providers including 2 adoption and foster care providers, and transpor- 3 tation. Forms of discrimination include the exclusion 4 and denial of entry, unequal or unfair treatment, 5 harassment, and violence. This discrimination pre- 6 vents the full participation of LGBTQ people in so- 7 ciety and disrupts the free flow of commerce. 8 (4) Women also have faced discrimination in 9 many establishments such as stores and restaurants, 10 and places or establishments that provide other 11 goods or services, such as entertainment or transpor- 12 tation, including sexual harassment, differential pric- 13 ing for substantially similar products and services, 14 and denial of services because they are pregnant or 15 breastfeeding. 16 (5) Many employers already and continue to 17 take proactive steps, beyond those required by some 18 States and localities, to ensure they are fostering 19 positive and respectful cultures for all employees. 20 Many places of public accommodation also recognize 21 the economic imperative to offer goods and services 22 to as many consumers as possible. 23 (6) Regular and ongoing discrimination against 24 LGBTQ people, as well as women, in accessing pub- 25 VerDate Sep 11 2014 17:22 Mar 12, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S393.IS S393 4 •S 393 IS lic accommodations contributes to negative social 1 and economic outcomes, and in the case of public ac- 2 commodations operated by State and local govern- 3 ments, abridges individuals’ constitutional rights. 4 (7) The discredited practice known as ‘‘conver- 5 sion therapy’’ is a form of discrimination that harms 6 LGBTQ people by undermining individuals’ sense of 7 self worth, increasing suicide ideation and substance 8 abuse, exacerbating family conflict, and contributing 9 to second-class status. 10 (8) Both LGBTQ people and women face wide- 11 spread discrimination in employment and various 12 services, including by entities that receive Federal fi- 13 nancial assistance. Such discrimination— 14 (A) is particularly troubling and inappro- 15 priate for programs and services funded wholly 16 or in part by the Federal Government; 17 (B) undermines national progress toward 18 equal treatment regardless of sex, sexual ori- 19 entation, or gender identity; and 20 (C) is inconsistent with the constitutional 21 principle of equal protection under the Four- 22 teenth Amendment to the Constitution of the 23 United States. 24 VerDate Sep 11 2014 17:22 Mar 12, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S393.IS S393 5 •S 393 IS (9) Federal courts have widely recognized that, 1 in enacting the Civil Rights Act of 1964, Congress 2 validly invoked its powers under the Fourteenth 3 Amendment to provide a full range of remedies in 4 response to persistent, widespread, and pervasive 5 discrimination by both private and government ac- 6 tors. 7 (10) Discrimination by State and local govern- 8 ments on the basis of sexual orientation or gender 9 identity in employment, housing, and public accom- 10 modations, and in programs and activities receiving 11 Federal financial assistance, violates the Equal Pro- 12 tection Clause of the Fourteenth Amendment to the 13 Constitution of the United States. In many cir- 14 cumstances, such discrimination also violates other 15 constitutional rights such as those of liberty and pri- 16 vacy under the due process clause of the Fourteenth 17 Amendment. 18 (11) Individuals who are LGBTQ, or are per- 19 ceived to be LGBTQ, have been subjected to a his- 20 tory and pattern of persistent, widespread, and per- 21 vasive discrimination on the bases of sexual orienta- 22 tion and gender identity by both private sector and 23 Federal, State, and local government actors, includ- 24 ing in employment, housing, and public accommoda- 25 VerDate Sep 11 2014 17:22 Mar 12, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S393.IS S393 6 •S 393 IS tions, and in programs and activities receiving Fed- 1 eral financial assistance. This discrimination inflicts 2 a range of tangible and intangible harms, sometimes 3 even including serious physical injury or death. An 4 explicit and comprehensive national solution is need- 5 ed to address this discrimination, including the full 6 range of remedies available under the Civil Rights 7 Act of 1964. 8 (12) Discrimination based on sexual orientation 9 includes discrimination based on an individual’s ac- 10 tual or perceived romantic, emotional, physical, or 11 sexual attraction to other persons, or lack thereof, 12 on the basis of gender. LGBTQ people, including 13 gender nonbinary people, also commonly experience 14 discrimination because of sex-based stereotypes. 15 Many people are subjected to discrimination because 16 of others’ perceptions or beliefs regarding their sex- 17 ual orientation. Even if these perceptions are incor- 18 rect, the identity imputed by others forms the basis 19 of discrimination. 20 (13) Numerous provisions of Federal law ex- 21 pressly prohibit discrimination on the basis of sex, 22 and Federal courts and agencies have correctly in- 23 terpreted these prohibitions on sex discrimination to 24 include discrimination based on sexual orientation, 25 VerDate Sep 11 2014 17:22 Mar 12, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S393.IS S393 7 •S 393 IS gender identity, and sex stereotypes. In particular, 1 the Supreme Court of the United States correctly 2 held in Bostock v. Clayton County, 140 S. Ct. 1731 3 (2020) that the prohibition on employment discrimi- 4 nation because of sex under title VII of the Civil 5 Rights Act of 1964 inherently includes discrimina- 6 tion because of sexual orientation or transgender 7 status. 8 (14) This Act makes explicit that existing Fed- 9 eral statutes prohibiting sex discrimination in em- 10 ployment (including in access to benefits), 11 healthcare, housing, education, credit, and jury serv- 12 ice also prohibit sexual orientation and gender iden- 13 tity discrimination. 14 (15) LGBTQ people often face discrimination 15 when seeking to rent or purchase housing, as well as 16 in every other aspect of obtaining and maintaining 17 housing. LGBTQ people in same-sex relationships 18 are often discriminated against when two names as- 19 sociated with one gender appear on a housing appli- 20 cation, and transgender people often encounter dis- 21 crimination when credit checks or inquiries reveal a 22 former name. 23 (16) National surveys, including a study com- 24 missioned by the Department of Housing and Urban 25 VerDate Sep 11 2014 17:22 Mar 12, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S393.IS S393 8 •S 393 IS Development, show that housing discrimination 1 against LGBTQ people is very prevalent. For in- 2 stance, when same-sex couples inquire about housing 3 that is available for rent, they are less likely to re- 4 ceive positive responses from landlords. A national 5 matched-pair testing investigation found that nearly 6 one-half of same-sex couples had encountered ad- 7 verse, differential treatment when seeking elder 8 housing. According to other studies, transgender 9 people have half the homeownership rate of non- 10 transgender people and about 1 in 5 transgender 11 people experience homelessness. Another survey 12 found that 82 percent of gender nonbinary people 13 experiencing homelessness lacked access to shelter. 14 (17) As a result of the absence of explicit prohi- 15 bitions against discrimination on the basis of sexual 16 orientation and gender identity, credit applicants 17 who are LGBTQ, or are perceived to be LGBTQ, 18 have unequal opportunities to establish credit. 19 LGBTQ people can experience being denied a mort- 20 gage, credit card, student loan, or many other types 21 of credit simply because of their sexual orientation 22 or gender identity. 23 (18) Numerous studies demonstrate that 24 LGBTQ people, especially transgender people and 25 VerDate Sep 11 2014 17:22 Mar 12, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S393.IS S393 9 •S 393 IS women, are economically disadvantaged and at a 1 higher risk for poverty compared with other groups 2 of people. For example, the poverty rate for older 3 women in same-sex couples is twice that of older dif- 4 ferent-sex couples. 5 (19) The right to an impartial jury of one’s 6 peers and the reciprocal right to jury service are 7 fundamental to the free and democratic system of 8 justice in the United States and are based in the 9 Bill of Rights. There is, however, an unfortunate 10 and long-documented history in the United States of 11 attorneys discriminating against LGBTQ individ- 12 uals, or those perceived to be LGBTQ, in jury selec- 13 tion. Failure to bar peremptory challenges based on 14 the actual or perceived sexual orientation or gender 15 identity of an individual not only erodes a funda- 16 mental right, duty, and obligation of being a citizen 17 of the United States, but also unfairly creates a sec- 18 ond class of citizenship for LGBTQ victims, wit- 19 nesses, plaintiffs, and defendants. 20 (20) Numerous studies document the shortage 21 of qualified and available homes for the approxi- 22 mately 424,000 youth in the child welfare system 23 and the negative outcomes for the many youth who 24 live in group care as opposed to a loving home or 25 VerDate Sep 11 2014 17:22 Mar 12, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S393.IS S393 10 •S 393 IS who age out of care without a permanent family 1 placement. Although same-sex couples are 7 times 2 more likely to foster or adopt than their different- 3 sex counterparts, many child-placing agencies refuse 4 to serve same-sex couples and LGBTQ individuals. 5 This has resulted in a reduction of the pool of quali- 6 fied and available homes for youth in the child wel- 7 fare system who need placement on a temporary or 8 permanent basis. It also sends a negative message 9 about LGBTQ people to children and youth in the 10 child welfare system about who is, and who is not, 11 considered fit to be a parent. While the priority 12 should be on providing the supports necessary to 13 keep children with their families, when removal is re- 14 quired, barring discrimination in foster care and 15 adoption will increase the number of homes available 16 to foster children waiting for foster and adoptive 17 families. 18 (21) LGBTQ youth are overrepresented in the 19 foster care system by at least a factor of two and 20 report twice the rate of poor treatment while in care 21 compared to their non-LGBTQ counterparts. 22 LGBTQ youth in foster care have a higher average 23 number of placements, higher likelihood of living in 24 a group home, and higher rates of hospitalization for 25 VerDate Sep 11 2014 17:22 Mar 12, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S393.IS S393 11 •S 393 IS emotional reasons and of juvenile justice involvement 1 than their non-LGBTQ peers because of the high 2 level of bias and discrimination that they face and 3 the difficulty of finding affirming foster placements. 4 Further, due to their physical distance from friends 5 and family, traumatic experiences, and potentially 6 unstable living situations, all youth involved with 7 child welfare services are at risk for being targeted 8 by traffickers seeking to exploit children. Barring 9 discrimination in child welfare services will ensure 10 improved treatment and outcomes for LGBTQ foster 11 children. 12 (22) Courts consistently have found that the 13 government has a compelling interest in preventing 14 and remedying discrimination. For example, the Su- 15 preme Court of the United States found there to be 16 a compelling government interest in eliminating sex 17 discrimination in Board of Directors of Rotary 18 International v. Rotary [Text truncated for display. Full text available on Congress.gov.]