Most Americans think that it's illegal to fire someone because they're gay; most Americans are wrong. In a poll released last summer, 62 percent of people surveyed said that they believed federal law already protects gay and lesbian workers from being fired because of their sexual orientation, but no such law exists. In fact, in 28 states, it's perfectly legal to do just that.
That means that, while gay and lesbian couples are now free to marry in all 50 states, in more than half of those states, their bosses are just as free to fire them for sharing their wedding photos.
This is the legal knot that Rep. David Cicilline, a Democrat from Rhode Island, said he wants to address with sweeping legislation that would expand the 1964 Civil Rights Act to include gender identity and sexual orientation. The law currently prohibits discrimination based on religion, race, gender, national origin, and disability, but no such protections exist for gender identity or sexual orientation.
In a "dear colleague" on the measure obtained by BuzzFeed, Cicilline wrote:
In most states, a same-sex couple can get married on Saturday, post pictures on Facebook on Sunday, and then risk being fired from their job or kicked out of their apartment on Monday. A majority of states in our country do not have laws that protect LGBT individuals against discrimination.
We need a uniform federal standard that protects all LGBT Americans from discrimination.
The Equality Act was officially announced on Thursday. And as Cicilline noted, the measure would do more than just ban employment discrimination against LGBTQ people—it would also prohibit such discrimination in everything from education to housing, jury selection, public accommodations, credit, and financial assistance. The measure also expands current protections in public accommodations to include—in addition to restaurants and hotels—things like cabs, banks, retail shops, and other places where people to do business.
But the ambitious nature of the bill also makes it contentious. The Employment Non-Discrimination Act, a measure that would secure basic legal protections for LGBTQ workers but is far less sweeping in scope than the Equality Act, has spent decades in congressional deadlock. It passed the Senate last year, but was never brought up for a vote in the House. The bill also lost momentum when, in response to the Supreme Court's Hobby Lobby decision, a number of LGBTQ organizations withdrew their support, fearing that, because of the high court's ruling that a private business could have a religious conscience, the bill would be subject to sweeping religious exemptions.
Which is another reason that the Equality Act will likely face challenges: it's specific about not expanding religious exemptions that could potentially weaken its impact.
The Equality Act maintains current religious exemptions for private schools and religious organizations, but according to a fact sheet on the bill, it also makes clear that the Religious Freedom Restoration Act cannot be used as a basis to justify discrimination that is otherwise prohibited.
According to the fact sheet, the Equality Act does not "change the existing religious exemption, so that discrimination on the basis of sexual orientation or gender identity is treated exactly the same as discrimination on the basis of race, sex, or national origin."
At a moment when Republicans in Congress are pushing to expand religious refusal and other protections, this measure is bound to stoke controversy.
But that dialogue—about the nature and limits of religious protections and the kinds of discrimination that is currently legal—might be part of the point, according to supporters. "Part of the vision here is to lay out the goal and start a public dialogue," said Sen. Jeff Merkley, a Democrat from Oregon and a co-sponsor of the bill. "So just as it took a long time to get those Republican partners on ENDA, it may take some dialogue, some exploration to have folks become comfortable, step up."