Minority Leader Nancy Pelosi recently said she would introduce the Equality Act as one of her first orders of business if Democrats retake the House in November. Pelosi made the announcement at the John F. Kennedy School of Government at Harvard University, telling the crowd the issue of equal rights for the LGBTQ community is "personal."
The 1964 Civil Rights Act already bars discrimination based on race, color, religion, sex and national origin. The Equality Act, if passed, would add sexual orientation and gender identity to the law and expand those protections beyond the workplace. It would outlaw gender discrimination in places like restaurants and retail shops, in seeking housing, using health care and social services, applying for a loan or participating in the jury selection process.
About 20 states and the District of Columbia currently have local gender and sex non-discrimination laws on the books. The House bill has 198 co-sponsors, including two Republicans. But no Senate Republicans have signed on, and social conservatives oppose the legislation. And even if the bill cleared Congress, it would still have to be signed by President Donald Trump, who has aligned himself closely with religious conservatives.
Still, Democrats plan to move forward with the bill if they win the House majority, teeing up a test of the GOP's willingness to block it. Pelosi spokesman Drew Hammill said the legislation will be given a low bill number, meaning it would be among the first pieces of legislation to be introduced. Hammill described such a designation as "a place of honor."
The Equality Act is a far-reaching piece of legislation, decades in the works, that would safeguard the LGBTQ community against discrimination and bias. It was introduced in both chambers of Congress in 2015, where it died in committee, and reintroduced in 2017, but has not been voted on.
"This is a very simple proposition," said Rep. David Cicilline, D-R.I., the lead sponsor of the bill in the House. "We have a long history in our country of prohibiting discrimination and promoting equality. It's the founding principle of our country, and I believe the vast majority of people in our country think discrimination is wrong. In many ways Congress has to catch up to where the American people are."
A narrower bill to bar gender discrimination in the workplace, called the Employment Non-Discrimination Act, passed the Senate in 2013 with 64 votes, including 10 Republicans. But then-House Speaker John Boehner, a vocal opponent, opted not to bring it to a floor vote.
Even if the Equality Act were to pass a Democratic House, its future in the Senate — where 60 votes are typically needed to advance legislation — would be uncertain. Some of the Republican senators who supported ENDA are out of office or will be come January. Five remain in Congress now: Sens. Pat Toomey of Pennsylvania, Rob Portman of Ohio, Dean Heller of Nevada, Susan Collins of Maine and Lisa Murkowski of Alaska, who recently bucked her party to become the only Republican to vote against the controversial confirmation of Supreme Court Justice Brett Kavanaugh.
Sen. Jeff Merkley, D-Ore., the main sponsor of the Equality Act in the Senate, said he's optimistic that shifting public attitudes on gay rights will propel the bill forward. He noted that in 2015, two years after ENDA stalled in Congress, the Supreme Court legalized gay marriage nationwide.
"This is what we need to accomplish. It is way past time to end discrimination across the board," Merkley said. "I find it astounding that here we are in a situation where you can now take your marriage certificate from state to state, but if you travel with your partner, in one you're treated as a citizen with full rights, and in the next, you're treated as a second-class citizen."
Merkley said soon after the midterm election he'll begin reaching out to Republican senators to discuss the legislation. But so far they've been hard to convince: All 47 sponsors of the Senate bill are Democrats.
He sees one big sticking point for gaining Republican support: A provision in the bill forbids any employer or retailer from using the Religious Freedom Restoration Act, passed in 1993, to justify withholding services based on gender or sexual orientation. The law, which received bipartisan support, barred the government from interfering with the rights of religious practitioners. But more recently the law has been used to protect the rights of business owners to refuse service based on religious beliefs. In one 2014 case, the Supreme Court found that chain craft store Hobby Lobby, founded by religious evangelicals, didn't have to provide its employees with contraception coverage for religious reasons.
The Trump administration has pursued policies in line with that law when taking steps to roll back protections for LGBTQ individuals, including rescinding guidance for schools on how to treat transgender students and attempting to bar transgender individuals from serving in the military. The administration is also considering a proposal to limit the definition of gender to include only one's sex at birth, according to The New York Times, prompting outrage from LGBTQ advocates.
Religious and conservative organizations have been vocal in their opposition to the Equality Act. Mary Beth Waddell, senior legislative assistant for conservative group Family Research Council, likened it to government-sanctioned discrimination against religious people.
"The current law in civil rights and the protected classes are inborn and unchangeable characteristics like race, ethnicity, national origin, age, sex, etc., and religion, which is expressly protected under the constitution," Waddell said. "What the Equality Act does is it turns it on its head and allow the government to impose a belief system about sexual decisions and sexual behaviors on the nation."
Waddell said if the bill comes up for a vote, the group will "certainly be part of the opposition." One advantage for supporters of the Equality Act is that it has overwhelming support from the business community. Since it was first introduced, major corporations including Apple, Dow Chemical Company, Amazon, General Electric Co. and more than 100 others have signed on to endorse its passage.
"Unlike virtually any other omnibus civil rights bill, the Equality Act had corporate support from the day of introduction," said Deena Fidas, director of the Human Rights Campaign's Workplace Equality Program.