To help achieve our vision of equality, I will make enactment of the Equality Act a top legislative priority during my first 100 days — a priority that Donald Trump opposes. This is essential to ensuring that no future president can ever again roll back civil rights and protections for LGBTQ+ individuals, including when it comes to housing. — Joseph Biden, October 28, 2020
The other shoe has dropped
President Elect Joseph Biden, before even being sworn into office, has broken a solemn campaign promise he made repeatedly and forcibly to LGBTQ people. He told us over and over that his “number one legislative priority” would be passing The Equality Act, which would add LGBTQ people as classes of marginalized minorities to the Civil Rights Act of 1964.
Members of Congress have introduced the Equality Act every year since 2015. It passed the House in 2019 with almost no Republican support, but Senate Majority Leader Mitch McConnell refused to allow it to come to the Senate floor for a vote.
What is the Equality Act?
The Act is needed to fight discrimination against members of gender and sexual minorities in housing, employment, education, health care, public accommodation and other areas of civil life. Many Americans presume discrimination against LGBTQ people is already illegal. Sadly, they are wrong.
In many states, discrimination is common and legal.
Just this week Pink News reported that Jéaux Rinedahl, a successful and popular adjunct professor of nursing at the private Seattle Pacific University, was denied a full time position for the explicit reason that he is gay. The university cite their “Christian values.” Professor Rinedahl, himself a devout Christian, is good enough to teach part time at low pay and without benefits, but being gay makes him ineligible for a “real job.” Students are protesting, but the university’s anti-LGBTQ bigotry likely violates no existing laws.
Seattle Pacific University students rally to support gay professor after discrimination claims
Jéaux Rinedahl, who is gay, teaches part-time at SPU, but says he was denied a full-time position because of his sexual…
Stories about this sort of unjust discrimination against LGBTQ Americans appear in the queer press almost every day. Most cases go unreported. Housing is often a critical problem, which this legally married couple demonstrate. They were denied an apartment together in a retirement community solely because they are lesbians. The community cites Christian values as justification for their bigotry.
Judge rules against lesbians rejected from retirement home
A federal judge this week ruled against a lesbian couple who sued a Missouri retirement home for rejecting their…
Biden’s Equality Act promise stalls
Biden promised he would fix these problems by starting a massive effort to pass the Equality Act the very day he was sworn in. He intoxicated LGBTQ advocates by telling us things would be different now. That he would go to bat for us with all the power at his disposal.
Now he’s admitting his Equality Act promise is more than he can deliver.
In a conference call with LGBTQ advocates first leaked to LGBTQ Nation two days ago, Biden announced he will not push for the Equality Act in his first 100 days. He cites scheduling difficulties due to a possible Senate trial of Donald Trump and the need to pass comprehensive covid-19 relief legislation.
LGBTQ advocates suggest that the real reason is much simpler.
Current Senate filibuster rules mean that bills require 60 votes to pass, but with Vice President Harris as a tie breaker, the Democrats have only 51 votes. The Senate could change that rule with a simple majority vote, but Biden and Democratic leadership have evidently decided they will not take that step for LGBTQ people.
House Speaker Nancy Pelosi has independently assured advocates that she will still introduce and have the House pass the Act shortly after the new Congress is gaveled into session, but that isn’t going to mean much.
One LGBTQ political insider on the Biden conference call told the Washington Blade anonymously that the Senate is unlikely to move on the Equality Act until summer or fall, and even then only with initial committee action. He does not expect a floor vote in the foreseeable future, if ever.
Other advocates hold out hope, but without significant political pressure, nothing is likely to change. Here’s why:
Biden knew all along his Senate majority would be slim or nothing
Nobody serious ever predicted a 60-member, filibuster-proof Democratic advantage in the Senate this year. A slim majority was the most optimistic projection credible analysts supposed in late October when Biden said, ‘ I will make enactment of the Equality Act a top legislative priority during my first 100 days.”
He did NOT add, “only if we have 60 Democratic senators to prevent a filibuster.” He couldn’t have added that, because he would have been laughed out of any room he said it in. People would have instantly understood that his promise meant nothing.
But since he DID promise, and since he knew beyond any doubt that a Democratic majority in the Senate would be marginal or nonexistent, LGBTQ people believed he would move beyond ordinary politics and take extraordinary action to fight for us.
We presumed he would nuke the filibuster rule. How else did he intend to keep his promise? Well, now we know. He never meant to at all. His promise was never serious.
Many of us are left with a bitter taste in our mouths, understanding that once again we’ve been taken for granted, if not exactly played the fool.
Lots of good things can still happen for LGBTQ equality
While our disappointment should taste bitter, and while we must continue to pressure Biden to keep the promise we believe he made in good faith, progress is possible without the Equality Act.
During the same conference call I mentioned above, Biden indicated he will do as much as he can with executive orders, starting with overturning the ban on transgender people serving in the military. This is GREAT news for trans folks, who deserve the same start I got in life when I overcame poverty by joining the military to pay for a college education. (Even though I had to lie about being gay.)
Biden’s executive order will take about a year to implement, but LGBTQ advocates trust he will move as fast as possible to make enforcement a reality.
The Center for American Progress (CAP) has issued a report outlining a series of non-legislative steps Biden must take to roll back Trump’s assault on LGBTQ equality and to advance equality toward new frontiers.
These steps include executive orders and a swathe of changes to agency rules and regulations across the federal bureaucracy. For example, now that Trump’s people have concluded almost 18 months of work by finalizing HHS rules that allow government contractors to discriminate against LGBTQ people, the Biden administration must draft new rules — in a time-consuming process that usually takes a year or more to accomplish.
Bostock “master” executive order
CAP joins LGBTQ advocates in calling on Biden to sign a “master” executive order directing all federal agencies to take immediate steps to implement the Supreme Court’s Bostock v. Clayton County decision, which holds that all LGBTQ discrimination is a form of sex discrimination and illegal under existing civil rights law.
Sharita Gruberg, a senior director at CAP, has told reporters the Biden transition team has been “receptive” to requests in the report, but did not offer any information on timing of executive orders or agency regulation rewrites. The Biden team has not promised to issue the “master” executive order.
Executive orders and agency regulations can’t replace the Equality Act
The Biden administration can accomplish a tremendous amount of good by fully implementing CAP’s recommendations. Executive orders and regulations can work against oppression and stop a lot of suffering. LGBTQ people everywhere urge Joe Biden to take every step he is able with all the speed his team can muster.
LGBTQ advocates across the nation urge Biden to issue the Bostock executive order on his first day in office.
But executive action cannot replace the Equality Act, which would bind all levels of government in the Unites States, not just the federal government. A wave of anti-LGBTQ legislation is pending in conservative states across the nation, Republicans in Mississippi and Montana leading the pack with legislative hatred directed against transgender people.
While these laws may eventually be found to violate Bostock, judicial review could take many years, possibly up to a decade.
Executive action at the federal level can do little to nothing to stop legal discrimination at the state level. To end that definitively, we must have the Equality Act. We LGBTQ people have been waiting for decades to gain full status as equal American citizens. The time for excuses is over, the time for action is now.
To all Americans of good will, the time is now to keep full pressure on the Biden administration. We LGBTQ people can’t win our equality on our own. We desperately need your help.
James Finn is a former Air Force intelligence analyst, long-time LGBTQ activist, an alumnus of Queer Nation and Act Up NY, an essayist occasionally published in queer news outlets, and an “agented” novelist. Send questions, comments, and story ideas to firstname.lastname@example.org.