The Equality Act: How we got here and how to get it passed

the voice and vision of a new generation

The Equality Act: How we got here and how to get it passed

September 30, 2020

At the onset of the 116th Congress, on March 13th, 2019, the House of Representatives introduced bill H.R.5: the Equality Act to increase federal protections for the LGBTQ+ community and women. The Equality Act, if passed into law, would make amendments to existing civil rights laws, such as the Civil Rights Act of 1964 and the Equal Opportunity Act, to explicitly include sexual orientation and gender identity as protected characteristics and prohibit discrimination in public spaces/federally funded programs based on sex. 

Additionally, the Equality Act would expand the scope of what is considered “public space” under federal law to include retail stores and services. Although not all encompassing, the Equality Act is a large step in the right direction for LGBTQ equality; no longer would LGBTQ+ people be able to be fired for being their authentic selves at work or refused service at taxpayer funded establishments. Put simply, the Equality Act is one of the most substantive pieces of LGBTQ+ legislation introduced to congress and it stands to be a momentous triumph for LGBTQ+ rights; but where did the Equality Act come from and, arguably more importantly, where is it now?

The Equality Act has complex origins dating back to the 1970s. The path through which it has been introduced, suppressed, and reintroduced in various forms since then; the story of the Equality Act is one festered with unorthodox lawmaking practices and polarization along party platforms. In 1970, Representative Bella Abzug, also called “Battling Bella” or “Hurricane Bella”, was elected to the House of Representatives for New York City’s 19th district. Greatly influenced by the ongoing struggle in New York City to pass the civil rights ordinances of the 1970s, Representative Abzug won reelection to the House in 1972 and 1974 by appealing to her aggrieved LGBTQ+ and female constituency. Representative Abzug promised, upon her election, to introduce LGBTQ+ discrimination laws in congress and move the discussion around LGBTQ+ protections from the state and local levels, where it had been blocked or stalled by conservative politicians and some religious advocates. Although stalled and ultimately “killed” immediately after its introduction, Representative Abzug’s progressive LGBTQ+ legislation is some of the earliest documented congressional proposals to expand civil rights protections to the LGBTQ+ community and has been reintroduced in various forms over the past 50 years.

In addition to the various iterations of the Equality Act, in 2007, congress revised the Employment Non-Discrimination Act (ENDA) to include protections for sexual orientation and gender identity. The ENDA prohibits covered entities with at least 15 employees from engaging in employment discrimination on the basis of an individual's actual or perceived identity (including race, gender, sexual orientation..etc). The ENDA, replacing the previous emphasize on the Equality Act, served as the cornerstone for LGBTQ non-discrimination legislation in congress before it was eventually scrapped and replaced with the current iteration Equality Act.

With a majority in the House and a party consensus around the issue of LGBTQ+ anti-discrimination laws in 2019, Democrats came upon a choice opportunity to pass the Equality Act through at least one chamber of congress. Recognizing, however, that they faced a Republican Senate opposed to the bill, Democrats took their time with the amendment and voting for the Equality Act by undergoing the arduous process of referring the bill to various House committees for amendment

During the committee deliberations, a handful Republican members of the Judiciary Committee repeatedly introduced amendments to the Equality Act in an, albeit pointless, attempt to dilute the bill’s contents. First up was congressman Louie Gohmert from Texas’s 1st district, how proposed to strike the section of the Equality Act that "prohibited defenses or claims based on the Religious Freedom Restoration Act”; the proposed amendment was defeated by a roll call vote of 8 to 18. Next up was congressman Tom McClintock from California’s 4th district, who proposed that “nothing in the Equality Act or any amendment made by it should be construed to require a health care provider to affirm the gender identity of a minor”; the motion was defeated by a roll call vote of 7 to 19. Last up was congressman Greg Steube from Florida’s 17th district who proposed a rule be constructed that nothing in the Act or any amendment made by it may be construed to require a biological female to face competition from a biological male in any sporting event; the amendment, like its predecessors, was defeated by a roll call vote of 10 to 22. Each amendment proposed, in its own right, attempted to undermine the protections for the LGBTQ community outlined in the legislation or to create a loophole to allow discrimination against LGBTQ people. Luckily, however, each amendment was shot down.

Growing tired of repeated motions for amendments that would dilute the bill, on May 1, 2019, Committee Chair Nadler forwarded the Equality Act back to the floor of the House for an official vote. Hoping to avoid another series of pointless amendments, Democrats limited amendments through a Closed Rule, meaning that debate would be timed and limited.

On the same day that the Rules Committee laid out the rules for voting/debate on the Equality Act, Democratic representative Mary Gay Scalon brought the amended Equality Act before the House with Resolution 377: “Providing for consideration of the bill (H.R. 5) to prohibit discrimination based on sex, gender identity, and sexual orientation, and for other purposes” One day later, on May 15, 2019, the motion to reconsider the Equality Act was laid on the table and Agreed to without objection before it was brought to a chamber-wide vote. With all of the necessary pieces in place the Democrats and a handful of Republicans passed the Equality Act on May 17, 2019, by a recorded vote of 236 to 173. Even though the Equality Act had managed to pass the House, it would face another battle in the senate to become a federal law.

After being passed in the House, the Equality Act was received in the Senate amended to accompany the unamended version introduced by Democratic Senator Merky Jeff from Oregon in March of the same year; where the bill would undergo the legislative process completed in the House all over again. To have a shot at passing the bill in the Senate and overcoming the infamous filibuster, the Democrats will have to convince at least 13 Republican senators to vote alongside them. The Republican-controlled Senate led by Mitch McConnell, however, seems to be determined to prevent any further action on the Equality Act.

As such, the bill has remained untouched in committee for over a year without any markups or committee hearings. Nevertheless, the Senate Democrats have repeatedly called for Majority Leader Mitch McConnell to hold a vote or take some action in regards to the Equality Act, but their pleas have gone largely unheard. Despite the fact the Equality Act has technically not been dismissed by the Senate, it would require a shift in the composition of the Senate to receive any further congressional action, which seems unlikely to happen. As such, the Equality Act has been stalled indefinitely or “killed in the water.” A piece of legislation with such great promise for furthering LGBTQ protections and civil rights has been, put simply, cast aside by partisan politics and political pandering.

You may be wondering, now what? What can I do to help? The fate of the Equality Act rests firmly in the hands of not only the Senate, but the office of the president. Come election time, we must make sure that we are going out to vote for candidates who support the Equality Act and other forms of legislation that protect the LGTBQ+ community. What’s more, we must mobilize those around us to support politicians not only in our own states or districts, but throughout the country who will progress the fight for equal protections of the LGBTQ community under the law. 

Changing the American political system, or even getting legislation passed, is often slow. Nevertheless, we must make our demands for equality heard at every level of government and across party lines; the fate of the Equality Act and the quality of lives of millions of members of the LGBTQ+ community lay in the balance.

Ty Gamble-Eddington is a GLAAD Campus Ambassador and Senior at Union College studying political science and history. He serves in numerous capacities on campus promoting diversity and inclusion while exploring the intersectionality of race, class, and sexuality. Ty is an avid advocate for the rights of marginalized communities, serving on both the the LGBTQ+ committee and the diversity liaison committee at Union. Ty is also a Junior Editor for GLAAD's digital platform Amp.

the voice and vision of a new generation