Federal Legislation to Bar Discrimination Based on Sexual Orientation or Gender Identity Passes in the U.S. House, Is Under Consideration in the Senate

On February 25, 2021, the U.S. House of Representatives passed a measure that, if enacted, will impose far-reaching federal statutory prohibitions against discrimination in employment, health care, housing, public accommodations, public education, credit, and federal jury service on the basis of sex, gender identity, and sexual orientation.

The Equality Act (H.R. 5/S. 393) would amend numerous sections of the Civil Rights Act of 1964 and other federal statutes to make discrimination based on sex — defined in the measure to include actual or perceived LGBTQ status — expressly unlawful across a variety of contexts. It also would expand existing law to provide a cause of action for associational discrimination, as well as discrimination based on an individual’s actual or perceived race, color, religion, or national origin. It has implications not only for public services but also for educational institutions and other organizations that are the recipients of federal funds.

The Equality Act is not to be confused with the Employment Non-Discrimination Act (ENDA), which was first introduced in the early 1990s (and reintroduced as recently as in 2013) to prohibit workplace discrimination on the basis of sexual orientation and gender identity. The ENDA was much narrower than the Equality Act and would not have amended the Civil Rights Act or extended its protections beyond the employment context. In contrast, the Equality Act would extend LGBTQ nondiscrimination rights well beyond employment, while at the same time expanding existing legal rights already provided under the Civil Rights Act.

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