A bill that would explicitly ban anti-LGBT discrimination in all areas of civil rights law is set for introduction in both chambers of Congress on Thursday, the Washington Blade has learned.
Capitol Hill sources said lead sponsors Rep. David Cicilline (D-R.I.) and Jeff Merkley (D-Ore.) will introduce the legislation on Thursday and hold a news conference at noon on the legislation on the Senate side of the U.S. Capitol.
According to a “Dear Colleague” letter dated July 20 and obtained by the Washington Blade, the legislation intends to prohibit anti-LGBT discrimination in seven areas: credit, education, employment, federal funding, housing, jury service and public accommodations.
The name of the legislation is the Equality Act, which is the same as legislation introduced more than 40 years ago by the late Rep. Bella Abzug of New York City. The bill, which was the first-ever gay rights measure introduced in Congress, would have amended the Civil Rights Act of 1964 to include sexual orientation.
In his letter to colleagues, Cicilline makes the case that although the U.S. Supreme Court ruled in favor of marriage equality nationwide LGBT people in most states “still lack basic legal protections against discrimination.”
“Every day, millions of LGBT Americans face the danger of real discrimination and sometimes even violence because of their sexual orientation or gender identity,” Cicilline said. “In most states, a same-sex couple can get married on Saturday, post pictures on Facebook on Sunday, and then risk being fired from their job or kicked out of their apartment on Monday.”
Lawmakers had sought as late as early this year to introduce the legislation in the spring, but the legislative session proceeded into June and July without introduction. The supporters of the bill are planning to introduce the bill just weeks before lawmakers adjourn for August recess.
Questions remain about which lawmakers will support the measure. Sources familiar with Capitol Hill said they weren’t expecting any initial Republican co-sponsors, but the “Dear Colleague” letter from Cicilline says lawmakers have until Thursday at noon to sign on as original co-sponsors.
The offices of Rep. Ileana Ros-Lehtinen, Sen. Susan Collins (R-Maine) and Sen. Mark Kirk (R-Ill.), who’ve supported pro-LGBT legislation in the past, haven’t respond to a request for comment for months on whether they’d support the bill.
In April, Cicilline lamented not being able to find Republican co-sponors for the planned legislation during a conference call with reporters about a separate resolution against anti-LGBT discrimination.
“I think it’s clear where the Democrats stand on this, but I think we’re all hopeful that we’ll be able to bring this effort forward in a bipartisan way,” Cicilline said at the time. “We’re not in a position yet to say that’s the case, but, obviously, I’m going to continue to do outreach, as I know Sen. Merkley is going on the Senate side to try to make this a bipartisan effort. But we won’t know that, obviously until the bill is introduced.”
Another question is whether the legislation will consist of amending the Civil Rights Act and the Fair Housing Act to include sexual orientation and gender identity, or some kind of separate legislation that would achieve comprehensive non-discrimination protections in another way. If it’s the latter, questions remain about whether disparate impact claims would be allowed in the legislation, which have given Republicans who support civil rights laws heartburn in the past.
According to sources familiar with the bill, those questions were thorny issues as late as this month as lawmakers sought to introduce the legislation before they left for August recess.
In a June op-ed piece for The Advocate, co-directors of GetEQUAL Heather Cronk and Angela Peoples, said amending the Civil Rights Act to include sexual orientation and gender identity isn’t the right approach for comprehensive LGBT legislation.
“On the surface, this is a good thing,” Cronk and Peoples wrote. “However, there is a very real possibility that amendments will be introduced on the Senate floor by the likes of Ted Cruz or Tom Cotton or a whole host of other right-wing lawmakers that not only strip the bill of its intended protections, but also gut the civil rights laws being amended.”
The offices of Cicilline and Merkley haven’t responded to repeated requests for comment on the nature of the bill or the timing for introduction.
The expected introduction of the Equality Act comes one week after the U.S. Equal Employment Opportunity Commission determined that anti-gay workplace discrimination is already prohibited under the gender protections of Title VII of the Civil Rights Act of 1964 and three years after the agency made the same determination for transgender workplace discrimination.
Chai Feldblum, a lesbian member of the commission who led the way for the decision, said in a Q&A with the Washington Blade that adding sexual orientation and gender identity to employment law is still necessary because it would provide “absolutely certainty” anti-LGBT discrimination is prohibited in the event courts disagree with EEOC.
Most observers expect the Equality Act won’t see any movement this Congress given the body’s current makeup, which consists of its largest Republican majority since the Truman administration.
Still, an amendment in the House applying President Obama’s executive order prohibiting anti-LGBT workplace discrimination to federal housing spending passed as part of a spending bill. In the Senate, pro-LGBT amendments on multiple occasions have received votes in which more than a majority of senators have voted “yes,” but they’ve still failed because they couldn’t reach the 60-vote threshold necessary for passage.
If any legislation related to LGBT issues sees movement, it may be the First Amendment Defense Act, a religious freedom bill seen to enable anti-LGBT discrimination.
Following its introduction in June, support for the bill — introduced by Rep. Raul Labrador (R-Idaho) in the House and Sen. Mike Lee (R-Utah) in the Senate — has steadily risen. The bill has 130 co-sponsors in the House and 36 co-sponsors in the Senate. A committee markup was initially scheduled this week, but has since been cancelled.
As a third alternative, moderate Republicans led by Rep. Charlie Dent (R-Pa.) have proposed a compromise bill that purports to provide LGBT non-discrimination and religious freedom protections. Shawn Millan, a Dent spokesperson, said Monday he doesn’t yet have a date for introduction.
The proposal consists of the Employment Non-Discrimination Act and amending the Fair Housing Act to include LGBT protections. At the same time, the bill would affirm non-profits won’t lose their tax-exempt status for opposing same-sex marriage and express the sense of Congress the 1993 Religious Freedom Restoration Act prohibits the nationwide ruling in favor of same-sex marriage from substantially burdening the free exercise of religion.