The United States still needs the Equality Act

On a Saturday night in 2017, a transgender woman was about to pay for her purchases at a Walmart in Oklahoma when the cashier stared at her with wide eyes and abruptly closed the check-out lane. “I don’t have to deal with you people,” she said.

The woman got the attention of a manager, but the cashier refused to finish checking her out, insisting that her religion didn’t accept “those people.” After the manager apologized and finished ringing her up, the customer carried her items back to her car and burst into tears, humiliated by the experience.

Over the past five years, I’ve met with dozens of people like this woman who experience discrimination in the United States because they are lesbian, gay, bisexual or transgender (LGBT). As lawmakers prepare to reintroduce the Equality Act, a comprehensive nondiscrimination bill, Congress has an opportunity to make things right.

The Equality Act would amend existing civil rights laws to expressly prohibit discrimination based on sex, sexual orientation and gender identity. In doing so, it would finally protect LGBT people from discrimination in employment, housing, education, federally funded programs, public accommodations, credit and jury service. 

For most people in the United States, those protections are a matter of common sense and long overdue. In 2020, polling found that more than 8 in 10 people support the passage of nondiscrimination laws that would protect LGBT people. A majority of people in every state support LGBT-inclusive nondiscrimination protections, as do a broad majority of both Democrats and Republicans.

The idea that LGBT people should be protected from discrimination is so obvious that many assume that inclusive laws already exist. In a 2019 national survey, nearly half of all respondents believed — incorrectly — that discrimination against LGBT people is prohibited under existing laws.

But the reality is that LGBT people continue to experience high rates of discrimination in housing, health care and businesses that serve the public, and when they do, legal protections are uneven and can be unclear.

Last summer, the Supreme Court issued a landmark ruling in Bostock v. Clayton County that federal employment laws that prohibit sex discrimination also prohibit discrimination based on sexual orientation and gender identity. The court reasoned that such forms of discrimination are, at bottom, forms of differential treatment based in part on a person’s sex.

The court declined to address other kinds of anti-LGBT discrimination in Bostock, saying they were only discussing employment law. But the same logic should mean that LGBT people should be protected under other federal laws that prohibit sex discrimination.

The Trump administration seized on the court’s focus on employment to press ahead with rules that would write LGBT people out of nondiscrimination protections in health care, housing and other domains. Advocates challenged these efforts in court, and the Biden administration has pledged to revisit these rules and confront discrimination.

While courts and federal agencies increasingly endorse inclusive interpretations of sex discrimination, these are no substitute for an explicit nondiscrimination law protecting LGBT people. Many people in the United States, both those who provide services and those who receive them, may not be aware that laws that offer protections based on “sex” can extend to sexual orientation and gender identity. And as the past four years demonstrated, even inclusive interpretations can too easily be hamstrung by a hostile administration.

Moreover, even inclusive interpretations of sex discrimination provisions leave LGBT people without protection in some circumstances. Existing civil rights laws regarding public accommodations only prohibit discrimination on the grounds of race, color, religion or national origin — not sex. Without the Equality Act, LGBT people have little recourse even when they experience blatant discrimination in a business that is open to the public.

Some states have protections, but these aren’t enough. Only 22 states expressly prohibit discrimination based on both sexual orientation and gender identity in housing, and only 21 states do so in public accommodations. 

In 2021, that leaves LGBT Americans with a patchwork of protections that can be unclear and unreliable — and that leave people vulnerable to humiliation and rejection. While recent advances are important, judicial interpretations and agency rulemaking cannot substitute for clear, comprehensive and durable protections under federal law.

The House should once again pass the Equality Act, as they did in 2019 — and this time, the Senate should follow suit. Enacting it should be a no-brainer. The public supports it, LGBT people need it, and it advances the civil rights promise that people should not be treated as inferior solely because of who they are.

Ryan Thoreson is a researcher in the LGBT Rights Program at Human Rights Watch. Follow him on Twitter @ryanthoreson.