Equality Act

II 116TH CONGRESS 1ST SESSION S. 788 To prohibit discrimination on the basis of sex, gender identity, and sexual orientation, and for other purposes. IN THE SENATE OF THE UNITED STATES MARCH 13, 2019 Mr. MERKLEY (for himself, Ms. COLLINS, Ms. BALDWIN, Mr. BOOKER, Mr. MARKEY, Mr. JONES, Mr. WHITEHOUSE, Mr. BLUMENTHAL, Mr. LEAHY, Ms. HARRIS, Ms. CANTWELL, Mr. VAN HOLLEN, Ms. STABENOW, Mrs. MURRAY, Ms. WARREN, Mr. WYDEN, Ms. CORTEZ MASTO, Ms. KLO- BUCHAR, Mr. CARDIN, Ms. ROSEN, Mr. CASEY, Mr. SANDERS, Mr. PETERS, Mr. BROWN, Mr. MENENDEZ, Ms. SMITH, Mr. REED, Mrs. SHAHEEN, Mr. COONS, Mr. KAINE, Mr. HEINRICH, Ms. HASSAN, Mr. BENNET, Mr. MURPHY, Mr. CARPER, Mr. UDALL, Mr. TESTER, Mr. DURBIN, Mrs. FEINSTEIN, Mrs. GILLIBRAND, Mr. SCHATZ, Ms. DUCKWORTH, Mr. KING, Mr. WARNER, Ms. HIRONO, Mr. SCHUMER, and Ms. SINEMA) introduced the following bill; which was read twice and re- ferred 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 23:59 Mar 26, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S788.IS S788 pamtmann on DSKBFK8HB2PROD with BILLS 2 •S 788 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, or preg- 4 nancy, childbirth, or a related medical condition of 5 an individual, as well as because of sex-based stereo- 6 types. Each of these factors alone can serve as the 7 basis for discrimination, and each is a form of sex 8 discrimination. 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. Discrimination against a pregnant lesbian 16 could be based on her sex, her sexual orientation, 17 her pregnancy, or on the basis of multiple factors. 18 (3) Lesbian, gay, bisexual, transgender, and 19 queer (referred to as ‘‘LGBTQ’’) people commonly 20 experience discrimination in securing access to pub- 21 lic accommodations—including restaurants, senior 22 centers, stores, places of or establishments that pro- 23 vide entertainment, health care facilities, shelters, 24 government offices, youth service providers including 25 adoption and foster care providers, and transpor- 26 VerDate Sep 11 2014 23:59 Mar 26, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S788.IS S788 pamtmann on DSKBFK8HB2PROD with BILLS 3 •S 788 IS 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 23:59 Mar 26, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S788.IS S788 pamtmann on DSKBFK8HB2PROD with BILLS 4 •S 788 IS 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 23:59 Mar 26, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S788.IS S788 pamtmann on DSKBFK8HB2PROD with BILLS 5 •S 788 IS 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. An explicit and comprehen- 24 sive national solution is needed to address such dis- 25 VerDate Sep 11 2014 23:59 Mar 26, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S788.IS S788 pamtmann on DSKBFK8HB2PROD with BILLS 6 •S 788 IS crimination, which has sometimes resulted in vio- 1 lence or death, including the full range of remedies 2 available under the Civil Rights Act of 1964. 3 (12) Numerous provisions of Federal law ex- 4 pressly prohibit discrimination on the basis of sex, 5 and Federal agencies and courts have correctly in- 6 terpreted these prohibitions on sex discrimination to 7 include discrimination based on sexual orientation, 8 gender identity, and sex stereotypes. In particular, 9 the Equal Employment Opportunity Commission 10 correctly interpreted title VII of the Civil Rights Act 11 of 1964 in Macy v. Holder, Baldwin v. Foxx, and 12 Lusardi v. McHugh. 13 (13) The absence of explicit prohibitions of dis- 14 crimination on the basis of sexual orientation and 15 gender identity under Federal statutory law has cre- 16 ated uncertainty for employers and other entities 17 covered by Federal nondiscrimination laws and 18 caused unnecessary hardships for LGBTQ individ- 19 uals. 20 (14) LGBTQ people often face discrimination 21 when seeking to rent or purchase housing, as well as 22 in every other aspect of obtaining and maintaining 23 housing. LGBTQ people in same-sex relationships 24 are often discriminated against when two names as- 25 VerDate Sep 11 2014 23:59 Mar 26, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S788.IS S788 pamtmann on DSKBFK8HB2PROD with BILLS 7 •S 788 IS sociated with one gender appear on a housing appli- 1 cation, and transgender people often encounter dis- 2 crimination when credit checks or inquiries reveal a 3 former name. 4 (15) National surveys, including a study com- 5 missioned by the Department of Housing and Urban 6 Development, show that housing discrimination 7 against LGBTQ people is very prevalent. For in- 8 stance, when same-sex couples inquire about housing 9 that is available for rent, they are less likely to re- 10 ceive positive responses from landlords. A national 11 matched-pair testing investigation found that nearly 12 one-half of same-sex couples face adverse, differen- 13 tial treatment when seeking elder housing. Accord- 14 ing to other studies, transgender people have half 15 the homeownership rate of non-transgender people 16 and about 1 in 5 transgender people experience 17 homelessness. 18 (16) As a result of the absence of explicit prohi- 19 bitions against discrimination on the basis of sexual 20 orientation and gender identity, credit applicants 21 who are LGBTQ, or perceived to be LGBTQ, have 22 unequal opportunities to establish credit. LGBTQ 23 people can experience being denied a mortgage, cred- 24 it card, student loan, or many other types of credit 25 VerDate Sep 11 2014 23:59 Mar 26, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S788.IS S788 pamtmann on DSKBFK8HB2PROD with BILLS 8 •S 788 IS simply because of their sexual orientation or gender 1 identity. 2 (17) Numerous studies demonstrate that 3 LGBTQ people, especially transgender people and 4 women, are economically disadvantaged and at a 5 higher risk for poverty compared with other groups 6 of people. For example, older women in same-sex 7 couples have twice the poverty rate of older dif- 8 ferent-sex couples. 9 (18) The right to an impartial jury of one’s 10 peers and the reciprocal right to jury service are 11 fundamental to the free and democratic system of 12 justice in the United States and are based in the 13 Bill of Rights. There is, however, an unfortunate 14 and long-documented history in the United States of 15 attorneys discriminating against LGBTQ individ- 16 uals, or those perceived to be LGBTQ, in jury selec- 17 tion. Failure to bar peremptory challenges based on 18 the actual or perceived sexual orientation or gender 19 identity of an individual not only erodes a funda- 20 mental right, duty, and obligation of being a citizen 21 of the United States, but also unfairly creates a sec- 22 ond class of citizenship for LGBTQ victims, wit- 23 nesses, plaintiffs, and defendants. 24 VerDate Sep 11 2014 23:59 Mar 26, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S788.IS S788 pamtmann on DSKBFK8HB2PROD with BILLS 9 •S 788 IS (19) Numerous studies document the shortage 1 of qualified and available homes for the 437,000 2 youth in the child welfare system and the negative 3 outcomes for the many youth who live in group care 4 as opposed to a loving home or who age out without 5 a permanent family. Although same-sex couples are 6 7 times more likely to foster or adopt than their dif- 7 ferent-sex counterparts, many child placing agencies 8 refuse to serve same-sex couples and LGBTQ indi- 9 viduals. This has resulted in a reduction of the pool 10 of qualified and available homes for youth in the 11 child welfare system who need placement on a tem- 12 porary or permanent basis. Barring discrimination 13 in foster care and adoption will increase the number 14 of homes available to foster children waiting for fos- 15 ter and adoptive families. 16 (20) LGBTQ youth are overrepresented in the 17 foster care system by at least a factor of two and 18 report twice the rate of poor treatment while in care 19 compared to their non-LGBTQ counterparts. 20 LGBTQ youth in foster care have a higher average 21 number of placements, higher likelihood of living in 22 a group home, and higher rates of hospitalization for 23 emotional reasons and juvenile justice involvement 24 than their non-LGBTQ peers because of the high 25 VerDate Sep 11 2014 23:59 Mar 26, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S788.IS S788 pamtmann on DSKBFK8HB2PROD with BILLS 10 •S 788 IS level of bias and discrimination that they face and 1 the difficulty of finding affirming foster placements. 2 Further, due to their physical distance from friends 3 and family, traumatic experiences, and potentially 4 unstable living situations, many youth involved with 5 child welfare are at risk for being targeted by traf- 6 fickers seeking to exploit children. Barring discrimi- 7 nation in child welfare services will ensure improved 8 treatment and outcomes for LGBTQ foster children. 9 (b) PURPOSE.—It is the purpose of this Act to ex- 10 pand as well as clarify, confirm and create greater consist- 11 ency in the protections and remedies against discrimina- 12 tion on the basis of all covered characteristics and to pro- 13 vide guidance and notice to individuals, organizations, cor- 14 porations, and agencies regarding their obligations under 15 the law. 16 SEC. 3. PUBLIC ACCOMMODATIONS. 17 (a) PROHIBITION ON DISCRIMINATION OR SEGREGA- 18 TION IN PUBLIC ACCOMMODATIONS.—Section 201 of the 19 Civil Rights Act of 1964 (42 U.S.C. 2000a) is amended— 20 (1) in subsection (a), by inserting ‘‘sex (includ- 21 ing sexual orientation and gender identity),’’ before 22 ‘‘or national origin’’; and 23 (2) in subsection (b)— 24 VerDate Sep 11 2014 23:59 Mar 26, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S788.IS S788 pamtmann on DSKBFK8HB2PROD with BILLS 11 •S 788 IS (A) in paragraph (3), by striking ‘‘sta- 1 dium’’ and all that follows and inserting ‘‘sta- 2 dium or other place of or establishment that 3 provides exhibition, entertainment, recreation, 4 exercise, amusement, public gathering, or public 5 display;’’; 6 (B) by redesignating paragraph (4) as 7 paragraph (6); and 8 (C) by inserting after paragraph (3) the 9 following: 10 ‘‘(4) any establishment that provides a good, 11 service, or program, including a store, shopping cen- 12 ter, online retailer or service provider, salon, bank, 13 gas station, food bank, service or care center, shel- 14 ter, travel agency, or funeral parlor, or establish- 15 ment that provides health care, accounting, or legal 16 services; 17 ‘‘(5) any train [Text truncated for display. 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