The Equality Act: What Transgender People Need to Know
A bipartisan coalition in Congress is introducing The Equality Act — a nationwide law that would ban discrimination on the basis of your gender identity or sexual orientation. Here’s what that means for transgender people and our families.
UPDATED: [February 24, 2021] We have revised this post to reflect the latest information on the impact that the Bostock v. Clayton County decision has on employment discrimination and trans rights.
A bipartisan group of members of Congress has introduced The Equality Act, a historic piece of legislation that would explicitly and strongly extend civil rights protections to cover LGBTQ people nationwide.
The ambitious piece of legislation represents a major step forward for the transgender equality movement, and transgender people and our families might have reasonable questions about what it is and what it does: Who is covered by the Equality Act? How would it impact my job, my school, or my health care? What if I already live in a state with legal protections for transgender people? Won’t the President just veto it?
Below are some key questions and answers about The Equality Act and what it could mean for you, your family, and your ability to live your life. We at NCTE are so excited for this bill and what it means for the future of transgender rights — and we want to be sure you can join us on this journey and in this fight.
What would the Equality Act do?
The Equality Act prohibits discrimination based on an individual’s gender identity or sexual orientation in employment, housing, credit, education, jury service, federally-funded programs (including health care), and businesses that serve the public. It will also prohibit discrimination against women and girls in public accommodations for the first time in federal law.
Finally, the bill expands the list of protected places of public accommodations to include retail stores, transportation services like airports, taxis and bus stations, and service providers like accountants, for all groups covered.
To do this, The Equality Act would amend several crucial pieces of civil rights legislation — such as the Civil Rights Act of 1964 and the Fair Housing Act of 1968 — to clearly prohibit gender identity and sexual orientation discrimination. This would prohibit discrimination against LGBTQ people in the same way these laws already prohibit discrimination on the basis of race, sex, religion, and national origin.
The impact of The Equality Act would be slightly different in each area of a person’s life it covers — from work to schools to housing to health care. So let’s break down each issue:
How would the Equality Act prevent employers from firing or refusing hire to transgender people?
Over the last three decades, federal courts have consistently found transgender people are protected from discrimination by laws that prohibit sex discrimination — including Title VII of the 1964 Civil Rights Act, which prohibits sex discrimination in employment.
This was decisively confirmed last summer with the Supreme Court decision Bostock v. Clayton County, which clearly established that employers cannot fire or refuse to hire someone simply for being transgender.
The Equality Act would make it law once and for all that transgender workers are protected, meaning no one’s right to equal employment will be left to the interpretation of the courts.
What about other kinds of employment discrimination? What if my employer won’t let me use the restroom at work or refuses to use my new name?
Bias and prejudice of all kinds can take many forms, and transgender people, in particular, are frequently subjected to humiliation and ignorance across many parts of their lives.
Under the Equality Act, companies must provide employees access to restrooms and any other workplace facilities consistent with their gender identity. While not every possible situation is spelled out by the bill, other forms of discrimination such as outing an employee against their will, repeated and intentional misgendering, and other forms of harassment have been found to be discrimination by judges and state and federal agencies.
Businesses Serving the Public (Public Accommodations)
What is a public accommodation?
A “public accommodation” is any space that is open to the public or serves the public. This includes places like restaurants, theaters, hotels, and stadiums. The Equality Act would expand this definition to cover other places like transportation services, retail stores, shopping malls, and online services.
Federal law currently prohibits discrimination public spaces on the basis of race, color, religion, or national origin. The Equality Act adds protections against discrimination on the basis of sex, gender identity, and sexual orientation.
Does the Equality Act include public restrooms, locker rooms, and changing rooms?
Yes. The Equality Act prohibits discrimination against LGBTQ people in any business or place covered by the act. If a business is covered by the Act it cannot discriminate, including in access to restrooms or other facilities, and everyone must be able to use facilities consistent with their gender identity.
What impact would the Equality Act have on public schools?
Thousands of school districts across the country have adopted clear policies to support transgender students in recent years, but many students still face mistreatment and harassment from teachers, administrators, and their peers because of who they are.
Many courts have said that existing laws, such as Title IX of the Education Amendments of 1972 and the US Constitution, protect transgender students. The Equality Act would make clear, once and for all, transgender students are protected, from harassment, exclusion from school facilities, and other forms of discrimination.
What about private schools?
The Equality Act — like most federal education law — would not impact students at private schools unless they receive federal funding. Some state and local laws may apply to these schools.
What about colleges, universities, or vocational school?
The Equality Act also applies to any higher education institution that accepts federal funds, including federal student aid.
What kind of housing is covered under the Equality Act?
The Fair Housing Act currently prohibits discrimination in housing by landlords and real estate companies as well as local governments, banks and other lenders, and homeowners insurance companies on the basis of race, color, religion, sex, national original, familial status, or disability.
The Equality Act adds explicit protections from discrimination based on gender identity and sexual orientation in housing. In short, no landlord, realtor, loan officer, or bank may evict you, deny you a home or a loan, refuse to show or offer you a property, foreclose on you, or otherwise treat you differently because you are transgender.
What is a federally-funded program?
Federal civil rights laws apply to any program or service that accepts federal funding, whether through a contract, grant, award, or other forms of funding. This includes (but is not limited to) public schools, prisons, hospitals and health care providers that accept Medicare or Medicaid (which is nearly all of them), many state and local government programs, as well as any program operated by a federal agency (such as Social Security or immigration enforcement). The Equality Act would make clear that discrimination based on gender identity, sexual orientation, or any other gender-related bias is prohibited in these settings.
In short, the Equality Act would prohibit discrimination against transgender people by any entity that accepts federal dollars.
Does the Equality Act cover health insurance?
Exclusions in health insurance that target transgender people are already illegal under Section 1557 of the Affordable Care Act which prohibits discrimination on the basis of sex. Most courts have agreed that this law protects transgender people.
The Equality Act would explicitly prohibit discrimination on the basis of gender identity in any health insurance that involves federal funds. This includes Medicare, Medicaid, Tricare, health care obtained through Veterans Affairs clinics, and any private insurance sold through state Marketplaces.
Does the Equality Act create or change any religious exemptions?
No. Religious freedom is an important value we share in this country, and transgender people are as religiously diverse as the country as a whole. The Equality Act maintains existing religious exemptions in federal law while treating LGBTQ people the same as other protected categories.
In employment, existing law allows churches, private religious schools, and other religious institutions to prefer members of their own faith when hiring. The Equality Act does not change this long-standing exemption.
In housing, existing law allows churches, private religious schools, and other religious institutions to provide non-commercial housing for members of their own faith. The Fair Housing Act also does not apply to a person who rents up to three units in their own home. The Equality Act does not change these long-standing exemptions.
The Equality Act also makes clear that the Religious Freedom Restoration Act of 1993 did not create any new exemptions in historic civil rights laws.