How the Equality Act Will Change LGBTQ Litigation and Access to Federal Programs

Members of Congress are set to vote on the Equality Act on Thursday in a monumental decision that could expand the rights of LGBTQ Americans by amending the 1964 Civil Rights Act—so that people cannot be discriminated based on sexual orientation and gender identity.

The passing of such a bill could have a profound effect on approximately 9 million Americans who identify as lesbian, gay, bisexual, transgender or queer.

While the Equality Act will grant sweeping protections for the community, its most immediate effects include stronger tools for active litigation and inclusion in federally funded programs related to housing, healthcare and education.

"There are cases right now that are challenging discriminations faced by LGBTQ people under a variety of laws but, largely, under sex discrimination law," Gillian Branstetter, media manager at the National Women's Law Center, told Newsweek.

"In those cases, they will now have that extremely powerful new tool that will give them the exact discrimination that they're fighting in explicit terms," she said.

Branstetter noted that this type of immediate recourse will be important even after last summer's Supreme Court ruling in Bostock v. Clayton County, because challenges against sex discrimination will not be left up to a judge's interpretation of the law.

While the landmark civil rights case protects gay or transgender employees, Bostock does not cover federally funded programs.

"We're talking about people being included in and having access to government services," Equality Federation Executive director Fran Hutchins told Newsweek.

"The coronavirus pandemic has shown us that everybody, at some point in time, is going to need the help of the government. Even just to make rent that month, even just to get groceries that month, people who didn't even think that they would ever have to access those types of services," she said.

"At a time when it's becoming so critical for people to get the type of help that they need to even just survive, the idea of actually figuring out 'who can we exclude? Who should we be allowed to exclude from these critical services?' seems like a really insulting conversation," Hutchins added.

LGBTQ flag
Flags fly in Foley Square during the Queer Liberation March for Black Lives & Against Police Brutality on June 28, 2020. The U.S. House of Representatives will vote on the Eqaulity Act on Thursday. John Lamparski/Getty

Branstetter said that the passage of the Equality Act would prohibit common instances of discrimination against LGBTQ people. For example, she points out that transgender people are often turned away by medical providers not only when accessing transition-related healthcare, but when seeking any type of healthcare.

"One of the clearest victories that we'll have once the Equality Act is signed is that clear message to employers, to landlords, to teachers and principals that it is not up for debate whether you need to be inclusive of LGBTQ people, that in fact you can face very serious harm if you are not," Branstetter said.

While the Biden administration has brought relief to LGBTQ Americans through a number of executive orders issued during the president's first few days in office, advocates for the bill say passing the Equality Act remains necessary so that future administrations cannot reverse Biden's orders.

Hutchins said passing the Equality Act would have a tremendous impact for those in the 29 states that do not already have anti-discrimination laws in place, like in her home state of Alabama.

"I now live in a state that does have those protections, but my family is still in, and I grew up in, Alabama," she explained. "Alabama is not a state where we expect the state legislature to pass any kind of law protecting folks from discrimination, anytime soon. So for all those little kids who grew up in Alabama like I did, it will make an immediate tangible difference in the protections that they have."

Casey Pick, a senior advocacy fellow for the Trevor Project, agreed that these safeguards will be even more influential for young Americans who may face sex-based discrimination.

"The day it passes, the world LGBTQ youth are growing up in will have changed forever," Pick told Newsweek. "In practical terms, the Equality Act would greatly expand access to federally funded programs that LGBTQ youth disproportionately need, such as services related to homelessness and violence. Additionally, knowing that discrimination is legally forbidden will make LGBTQ youth more likely to actually seek out these services in times of need."

Opponents to the Equality Act fear that the legislation will infringe on religious protections. But Hutchins argues that the freedom of religion should not be pitted against things like access to public spaces or discrimination in housing.

"It feels to me as though there is there's a disconnect," she said. "When it comes to thinking about what does the average person, who is religious in the country, believes, it's about the golden rule. It's about treating people the way they want to be treated."

Hutchins argues that protections for LGBTQ Americans are long overdue, especially since most Americans support equal rights for these individuals.

"Eighty-five plus percent of people in the U.S. support non discrimination and don't think that LGBTQ people should be discriminated against," she said. "A lot of folks are really surprised to find out that actually isn't covered under most laws, so this is really going to update our laws to match the values that folks have now."

During a Thursday press conference, Human Rights Campaign president Alphonso David, who is currently lobbying for the passage of the Equality Act at the Capitol building in Washington D.C., said he is hopeful that the Senate will support and pass the bill after the House votes on the legislation.

While the Equality Act has the support of every single House Democrat as a co-sponsor, and had been previously passed with bipartisan support in the lower chamber in 2019, the bill will face a new challenge in the Senate.

Even though Senators Joe Manchin and Kyrsten Sinema, the most moderate Democratic senators, have supported the bill in the past, the Equality Act would need 60 votes, or the support of 10 Senate Republicans, to avoid a filibuster in the upper chamber.