The Equality Act: Another Demonstration of Minority Power
With majority support in Congress and executive backing, the U.S. is the closest it has ever been to passing the Equality Act, a historic piece of legislation that would ban discrimination against people based on sexual orientation and gender identity. But the Act’s future is still uncertain.
This week, the House is scheduled to vote on the Equality Act, an act that would ban discrimination and expand protections for people based on sexual orientation and gender identity. The House previously passed the Equality Act in 2019, but it did not receive a vote in the Republican led Senate. Now in 2021, the Senate currently sits at an even 50–50 split, with Democrat Vice President Kamala Harris to serve as a tie-breaker, but the bill is still threatened by the use of the filibuster, which would require 60 votes in the Senate to overcome.
President Biden has indicated his support for the bill, deeming it one of his top priorities within his first 100 days in office. If passed by Congress, the bill will become law.
The Equality Act: What is it?
Currently, the Civil Rights Act does not explicity prevent discrimination based on sexual orientation and gender identity. The Equality Act would amend this language to extend the ban on discrimination.
Last year, the Supreme Court heard Bostock v. Clayton County, which held that protections under the Civil Rights Act that prohibit discrimination in employment the basis of sex extend to lesbian, gay, and transgender Americans. The court reasoned that where a man is fired from a job because he is married to another man, he faced discrimination where a woman would not.
President Biden since taking office has signed an executive order to apply Bostock across the federal government and not just in cases of employment discrimination. Notably, because this was done by executive order, without the Equality Act, a new administration could quite easily walk back these protections.
The Equality Act would go even further than Bostock in solidifying non-discrimination principles into law. It would explicitly prohibit discrimination on the basis of sexual orientation and gender identity, rather than having such protections fall under the umbrella of “sex.”
Currently, 27 states lack LGBTQ anti-discrimination laws. The Equality Act would extend protections, fully covering federally funded programs and “public accommodations” at the state level. Public accommodations include any public place, whether publicly or privately held, that is used by the public, such as retail stores, service establishments like restaurants and bakeries, transportation services, and educational institutions, inter alia. For example, this would effect a baker who does not wish to provide a cake for a wedding between two men.
The bill would also supplant the Religious Freedom Restoration Act, a law passed in 1993, that allows for wide exceptions to government regulations where someone can argue that their religious freedom is being impeded.
Will it pass?
In 2019, the Equality Act passed the house with unanimous consent from Democrats and 8 Republicans. It will almost certainly pass the House again this week. The bill’s future is more uncertain once it reaches the Senate.
With a Democratic led senate, the bill will at the very least get a vote this time around. However, many Republicans, even those who identify as moderate, have voiced their opposition to the bill, citing religious liberty objections.
Senator Mitt Romney has stated that he will not be supporting the bill. His spokesperson told the Washington Blade that Senator Romney “believes in strong religious liberty protections” and feels that those are not protected under this bill. While Senator Susan Collins will support, Senators Lisa Murkowski and Rob Portman have yet to publicly state their views.
Other Republicans similarly oppose the bill in the name of religious liberty. Other arguments against the bill that have been floated around look to inequality in athletic competitions, stating that transgender women have an unfair advantage against cisgender women.
While no Republican votes are needed to pass the bill, they may be needed if senators decide to try and block the legislations via filibuster. To overcome the filibuster, 60 votes would be needed. At the moment, it is unlikely the 60 vote threshold will be met.
Progress is Stagnated by the Filibuster
The Equality Act is not the only piece of progressive legislation that stands at the mercy of the filibuster. The Green New Deal, cancelling student loan debt, Medicare for All, and even a robust Covid relief package all would have to overcome a filibuster to become law. While Democrats won the House, Senate, and Presidency, their power is sharply limited by this powerful minority tool.
In 2021, America is at its closest to passing the Equality Act, but it is also deeply divided, making the filibuster all the more powerful. This division is no better demonstrated than looking to the across-the-hall neighbors, Rep. Marie Newman, D-Ill and Rep. Majorie Taylor Greene, R-Ga.
Rep. Newman, an advocate for the Equality Act and whose child is transgender put a transgender flag outside her office after her neighbor’s attempts to block the Equality Act.
Rep. Greene used a motion to adjourn to attempt to delay a House vote on the Equality Act, calling for the House to “rethink destroying #WomensRights and #WomensSports and #ReligiousFreedom.” She responded to Newman’s flag by putting up a sign outside her office which stated there are “TWO genders” and we should “Trust the Science!”
While hopefully the back and forth in the Senate will not be as outwardly cruel, the divisions exist, cultivating the perfect environment to exploit the filibuster and prevent the majority from using their power.
A government cannot truly be “by the people” where it has mechanisms in place that almost always curtail the people’s voice from being implemented. This looming threat leaves all policy at the will of the minority, effectively making the country one of super-majority rule, an extremely high burden in a hyper polarized political environment. Understanding this, if progress is to be achieved, driving out filibuster is the next burden progressives need to tackle.
