The Equality Act and the Supreme Court Decision

In recent news, the Supreme Court heard three cases that will determine how the United States deals with discrimination on the basis of sexual orientation and gender identity. 

The two cases will decide whether or not one may be discriminated against on the basis of sexual orientation, these cases are Bostock v. Clayton County and Altitude Express Inc. v Zarda. 

The two cases were consolidated together by the Supreme Court. The third case, R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission (EEOC), is a case that will decide whether or not transgender and gender-nonconforming people are protected by anti-discrimination laws. 

To be more specific, these cases will determine whether or not LGBTQ people are protected under Title VII of the Civil Rights Act of 1964. 

In Title VII, it explicitly says that it is unlawful to refuse to hire or to fire a person or participate in any kind of employment-based discrimination due to their “race, color, religion, sex, or national origin.” 

It also says that employers cannot “limit, segregate, or classify” employees in a way that may take away from their employment opportunities due to the above. Zarda and Bostock are arguing that the usage of “sex” in this instance encapsulates sexual orientation as well as biological sex. 

The EEOC is arguing that “Title VII prohibits discrimination against transgender people based on (1) their status as transgender or (2) sex stereotyping under Price Waterhouse v. Hopkins” according to the SCOTUSBlog. 

The interpretation of Title VII has been fought over in many instances in the United States, and many of these instances show differing opinions. Even different branches of the government have differing interpretations of Title VII, according to Forbes. 

For example, according to the EEOC’s website, the “EEOC interprets and enforces Title VII’s prohibition of sex discrimination as forbidding any employment discrimination based on gender identity or sexual orientation. These protections apply regardless of any contrary state or local laws.” 

The website goes on to say that the EEOC sees Title VII as a protection against discrimination for any LGBT individual. But, the Department of Justice sided with an employer’s choice “to dismiss an employee’s Title VII claim,” because the Department says that the usage of the word “sex” in Title VII does not include sexual orientation, says Eric Bachman of Forbes. 

If the Supreme Courts decides in favor of “sex” not including sexual orientation or sexual stereotypes not including gender expression and identity, it could be a huge setback for LGBTQ civil rights. But, if the decision is negative for LGBTQ people, there is still hope. 

That hope lies in the passage of the Equality Act. The Equality Act has been on the backburner for the Senate to vote on since it passed 236-173 in the House in May of this year. Despite multiple civil rights activists calling for the Senate to have a vote on the act and a petition started by Taylor Swift with over 563,000 people. 

This petition surpassed the threshold needed to grab the Senate’s attention, and they did respond, but the response given in a statement by White House deputy press secretary Judd Deere was as follows: “The Trump administration absolutely opposes discrimination of any kind and supports the equal treatment of all; however, the House-passed bill in its current form is filled with poison pills that threaten to undermine parental and conscience rights.”

What Deere is talking about is the portion of the act that protects transgender people and allows them to be in spaces that adhere to their gender identity. The act also makes it so that transgender people cannot be denied care based on their gender identity. 

According to the National Review, some Republicans fear that this portion of the bill will not allow doctors to deny transgender affirmation therapies and surgeries to minors based on their medical and psychological history.

The Equality Act itself extends Title VII’s anti-discrimination laws to include sexual orientation and gender identity as well as sex. The bill prohibits discrimination due to sex, sexual orientation, and gender identity in public spaces “and facilities, education, federal funding, employment, housing, credit, and the jury system,” according to 

The bill also expands the “definition of public accommodations to include places that provide (1) exhibitions, recreation, exercise, amusement, gatherings, or displays; (2) goods, services, or programs; and (3) transportation services.”

 The bill also gives the Department of Justice the power to intervene when courts take into account equal protection actions for sexual orientation or gender identity. The bill does not allow for a person to be barred from a public place (“shared facility”) that goes along with their gender identity.

The Equality Act could be a huge step forward for LGBTQ civil rights and protections but as of right now the administration refuses the bill in its current form.