House Judiciary Committee Issues Report on Equality Act (Part 1 of 2)

WASHINGTON, May 15 -- The House Judiciary Committee issued a report (H.Rpt. 116-56) on legislation (H.R. 5) to prohibit discrimination on the basis of sex, gender identity and sexual orientation. The report was advanced by Rep. Jerrold Nadler, D-New York, on May 10.

Excerpts of the report follow:

Purpose and Summary

H.R. 5, the "Equality Act," ensures that federal law will explicitly and comprehensively prohibit discrimination on the basis of sexual orientation and gender identity to secure full integration of and equal opportunity for lesbian, gay, bisexual, transgender, and queer ("LGBTQ") persons in most key aspects of American life. It does this by codifying recent federal judicial and administrative decisions and by following the example of numerous states and localities that already provide explicit protections against such discrimination. Specifically, H.R. 5 amends Titles II (public accommodations), III (public facilities), IV (public education), VI (federally- funded programs), VII (employment), IX (intervention and removal of cases), and XI (miscellaneous provisions) of the Civil Rights Act of 1964 ("1964 Act");1 the Fair Housing Act;2 the Equal Credit Opportunity Act;3 and the nondiscrimination provisions of the statute governing jury selection4 by either adding sex--including sexual orientation and gender identity--as a protected characteristic or, where sex is already included as a protected characteristic, by explicitly clarifying that unlawful sex discrimination includes discrimination on the basis of sexual orientation or gender identity. It also expands the list of businesses and services that would be subject to the 1964 Act's public accommodations provisions and adds definitions of key terms and rules of construction clarifying that nothing in the bill undermines the rights of pregnant women or the rights of anyone to pursue claims for race, color, religion, sex (including sexual orientation and gender identity), or national origin discrimination under any other law. Finally, the bill contains a provision prohibiting the use of the Religious Freedom Restoration Act as a basis for a defense or claim in response to the enforcement of any of the civil rights statutes amended by H.R. 5.

1/42 U.S.C. Sec. Sec. 2000a-2000h--6 (2019).

2/42 U.S.C. Sec. Sec. 3601-3619 & 3631 (2019).

3/15 U.S.C. Sec. Sec. 1691 et seq. (2019).

4/28 U.S.C. Sec. Sec. 1862, 1867, 1869 (2019).

H.R. 5 is supported by more than 360 civil rights, public interest, business, labor, and professional organizations, including the Human Rights Campaign, the National Women's Law Center, the NAACP, the National Urban League, the American Civil Liberties Union, the Sports and Fitness Industry Association, the National Alliance to End Sexual Violence, Lambda Legal, the American Medical Association, the National Association of Secondary School Principals, the AFL-CIO, AFSCME, the Business Roundtable, the National Association of Manufacturers, and the U.S. Chamber of Commerce.5

5/See Human Rights Campaign, Business Coalition for the Equality Act, May 8, 2019, available at http://assets2.hrc.org/files/assets/ resources/Keep_Updated_-_Company_List_For_Website_- _Business_Coalition_for_Equality.pdf?_ga=2.182789092.378477246.155724177 8-403308507.1547139001; Human Rights Campaign, 364 Organizations Endorsing the Equality Act, April 25, 2019, available at https:// assets2.hrc.org/files/assets/resources/ Orgs_Endorsing_EqualityAct.pdf?_ga=2.177553511.378477246.1557241778- 403308507.1547139001; Human Rights Campaign, Associations Endorsing the Equality Act, Apr. 8, 2019, available at https://assets2.hrc.org/files/ assets/resources/Endorsing-associations-equality-act- 3.13.19.pdf?_ga=2.182446949.378477246.1557241778-403308507.1547139001.

Background and Need for the Legislation

I. BACKGROUND

A. Federal Statutes and Executive Orders

There is no federal statute that provides explicit and comprehensive protection against discrimination on the basis of sexual orientation or gender identity, and no federal statute explicitly prohibits such discrimination in employment, housing, public accommodations, federally-funded programs, education, credit opportunity, or jury service. What federal statutory protections currently exist are limited. For example, the Violence Against Women Reauthorization Act of 20136 prohibits sexual orientation and gender identity discrimination in programs and activities funded by that Act. In addition, Executive Order 13087, issued by President Bill Clinton, prohibits sexual orientation discrimination in the federal civilian workforce7 and Executive Order 13672, issued by President Barack Obama, prohibits gender identity discrimination in the federal civilian workforce and sexual orientation and gender identity discrimination in federal contracting.8 Neither of these measures, however, fully addresses the problem of sexual orientation and gender identity discrimination.

6/Pub. L. No. 113-4, 127 Stat, 54 (2013), available at https:// www.govinfo.gov/content/pkg/PLAW-113publ4/pdf/PLAW-113publ4.pdf.

7/Exec. Order No. 13087 (May 28, 1998), available at https:// www.govinfo.gov/content/pkg/FR-1998-06-02/pdf/98-14689.pdf.

8/Exec. Order No. 13672 (July 21, 2014), available at https:// www.govinfo.gov/content/pkg/CFR-2015-title3-vol1/pdf/CFR-2015-title3- vol1-eo13672.pdf.

B. Developments in Federal Judicial and Administrative Decisions

With respect to constitutional protections against discrimination on the basis of sexual orientation, the United States Supreme Court has issued several decisions that struck down state and federal laws differentiating between persons based on sexual orientation, finding that such laws were based on illegitimate animus and violated equal protection principles9 or invaded privacy rights guaranteed by the Fourteenth Amendment.10 Most recently, in Obergefell v. Hodges,11 the Court invalidated state laws that only recognized marriage as being exclusively between a man and a woman as violations of the Fourteenth Amendment's Due Process and Equal Protection Clauses. Yet, despite this general long- term trend towards recognizing greater constitutional protections against sexual orientation discrimination, the Court has also identified limits to state public accommodation laws that seek to protect sexual minorities from discrimination when those laws were applied in a manner that was in tension with the First Amendment rights of religious or moral objectors.12

9/United States v. Windsor, 570 U.S. 744 (2013) (holding that section of the federal Defense of Marriage Act ("DOMA") defining "marriage" and "spouse" to be limited to opposite-sex unions violated equal protection and due process principles and concluding that DOMA served no legitimate purpose); Romer v. Evans, 517 U.S. 620 (1996) (striking down state constitutional amendment that banned all legal protections against anti-gay discrimination at the state and local level as a violation of the Fourteenth Amendment's Equal Protection Clause, reasoning that animus toward the gay community could not justify harmful governmental actions).

10/Lawrence v. Texas, 539 U.S. 558 (2003) (holding that Texas statute banning same-sex sexual intercourse violated Fourteenth Amendment's privacy and equal protection guarantees).

11/135 S. Ct. 2584 (2015).

12/Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 138 S. Ct. 1719 (2018) (holding that state civil rights commission violated the First Amendment's Free Exercise Clause when it found that a baker who refused to make a wedding cake for a same-sex couple violated state antidiscrimination law because the Commission displayed a clear and impermissible hostility toward the sincere religious beliefs motivating the baker's objection); Boy Scouts of America v. Dale, 530 U.S. 640 (2000) (holding that the constitutional right to freedom of association permitted the Boys Scouts of America to exclude LGBT persons from membership notwithstanding state law prohibiting discrimination on the basis of sexual orientation in public accommodations).

A number of federal court decisions have addressed the treatment of discrimination based on sexual orientation and gender identity under federal civil rights law, particularly in the employment context. In Oncale v. Sundowner Offshore Services, Inc.,13 the Supreme Court recognized that a claim of same-sex sexual harassment was actionable as a sex discrimination claim under Title VII of the 1964 Act, which prohibits, in relevant part, employment discrimination based on sex.14 The Court reasoned that, while Congress may not have envisioned same-sex sexual harassment when it passed Title VII, "statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed."15 Additionally, in Price Waterhouse v. Hopkins,16 the Court held that discrimination on the basis of gender stereotypes could constitute a sex discrimination claim under Title VII.

13/523 U.S. 75 (1998).

14/42 U.S.C. Sec. 2000e-2 (2019).

15/Oncale, 523 U.S. at 79-80.

16/490 U.S. 228 (1989).

In recent years, the United States Courts of Appeals for the Second and Seventh Circuits, both sitting en banc, as well as the Equal Employment Opportunity Commission ("EEOC"), have issued decisions explicitly holding that employment discrimination on the basis of sexual orientation constitutes unlawful sex discrimination in violation of Title VII, based in part on an extension of the reasoning in Price Waterhouse and Oncale.17 In reaching this conclusion, they reasoned that sex is necessarily a factor in sexual orientation discrimination because one cannot fully define a person's sexual orientation without consideration of the person's sex and, as would be the case in any sex discrimination case, the person would not have been treated differently but for that person's sex.18 They also reasoned that sexual orientation discrimination is sex discrimination because it amounts to associational discrimination on the basis of sex, i.e., an employer unlawfully took an employee's sex into account by treating the employee adversely for associating with a person of the same sex.19 Finally, they concluded that sexual orientation discrimination could also amount to discrimination based on sex stereotypes, which, according to the Price Waterhouse decision, could amount to sex discrimination under Title VII.20 Other circuit courts have come to the opposite conclusion, holding that Title VII does not protect against sexual orientation discrimination.21

17/Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018) (en banc); Hively v. Ivy Tech Comm. Coll., 853 F.3d 339 (7th Cir. 2017) (en banc); Baldwin v. Foxx, No. 0120133080, 2015 WL 4397641 (E.E.O.C. July 15, 2015).

18/Id.

19/Id.

20/Id.

21/Wittmer v. Phillips 66 Co., 915 F.3d 328 (5th Cir. 2019) (reaffirming circuit precedent that expressly held that Title VII does not prohibit discrimination on the basis of sexual orientation); Evans v. Georgia Regional Hospital, 850 F.3d 1248 (11th Cir. 2017) (holding that plaintiff failed to state Title VII claim by alleging that she endured workplace discrimination because of her sexual orientation).

With respect to whether discrimination on the basis of gender identity constitutes unlawful sex discrimination under Title VII, circuit courts have also come to differing conclusions. Adopting reasoning that was similar to that followed by the Second and Seventh Circuits and the EEOC concerning sexual orientation-based discrimination, the United States Court of Appeals for the Sixth Circuit, in its 2018 decision in Equal Employment Opportunity Commission v. R.G. & G.R. Harris Funeral Homes, Inc.,22 held that Title VII prohibited discrimination on the basis of transgender or transitioning status as a form of sex discrimination, reasoning that such discrimination is necessarily motivated because of sex. It further reasoned that such discrimination would constitute discrimination on the basis of sex stereotypes, which would also violate Title VII's prohibition on discrimination "because of" sex. Other circuits, however, have reached the opposite conclusion with regard to whether Title VII directly prohibits discrimination on the basis of a person's gender identity.23

22/884 F.3d 560 (2018). See also Whitaker v. Kenosha Unified School District, 858 F.3d 1034 (2017) (holding that transgendered student transitioning from female to male was likely to succeed on the merits of his claim that a local public school district's unwritten policy prohibiting him from using boys' restroom violated his rights under Title IX of the Education Amendments Act of 1972 and the Fourteenth Amendment's Equal Protection Clause); Rosa v. Park West Bank & Trust Co., 214 F.3d 213 (2000) (reversing district court's grant of defendant's motion to dismiss for failure to state a claim where plaintiff, a biological male who sought and was denied a loan application from the defendant bank while dressed in traditionally feminine clothing, alleged that the bank violated the Equal Credit Opportunity Act's prohibition on sex discrimination).

23/See, e.g., Etsitty v. Utah Transit Authority, 502 F.3d 1215 (10th Cir. 2007) (holding that Title VII and the Equal Protection Clause do not recognize "transsexuals" as a protected class, but also declining to hold as a general matter that discrimination on the basis of gender identity could not constitute unlawful sex stereotyping under Price Waterhouse); Ulane v. Eastern Airlines, Inc., 742 F.2d 1081 (7th Cir. 1984) (Title VII does not protect "transsexuals"); Sommers v. Budget Marketing, Inc., 667 F.2d 748 (8th Cir. 1982) (same).

Recently, the Supreme Court announced it would consider next term the questions of whether Title VII's prohibition on sex discrimination in employment includes discrimination based on sexual orientation and gender identity.24 On the question of whether Title VII prohibits sexual orientation discrimination, the Court will consider an appeal of the Second Circuit's decision holding that it does as well as an Eleventh Circuit decision reaching the contrary conclusion.25 On the question of whether Title VII covers gender identity discrimination, the Court will consider an appeal of the Sixth Circuit's decision in the R.G. & G.R. Harris Funeral Homes case.26 Among other things, H.R. 5 codifies the holdings of the Second and Seventh Circuits finding that sexual orientation discrimination is sex discrimination under Title VII, and the analogous holding of the Sixth Circuit that gender identity discrimination is prohibited sex discrimination under Title VII.27

24/Adam Liptak, Supreme Court to Decide Whether Landmark Civil Rights Law Applies to Gay and Transgender Workers, N.Y. Times, Apr. 22, 2019, available at https://www.nytimes.com/2019/04/22/us/politics/ supreme-court-gay-transgender-employees.html.

25/Id.

26/Id.

27/Some concerns have been raised regarding the potential application of H.R. 5 to other aspects of employment law. The following describes these concerns and how H.R. 5 does or does not address the particular question of law.

First, a concern has been raised about whether the definition of gender identity would require employers to identify individuals based on their appearance, mannerisms, or other gender-related characteristics. The definition of gender identity, contained in H.R. 5, is not meant to be construed in a manner that would require employers to identify, stereotype, or make assumptions about employees' or job applicants' gender identity. Rather the definition should be construed in a manner that allows an employee or job applicant to represent their gender identity to the employer, if necessary, in a manner that allows for a discussion without discrimination. Likewise, the definition of sexual orientation, contained in H.R. 5, is not meant to be construed in a manner that would require employers to identify, stereotype, or make assumptions about employees' or job applicants' sexual orientation. Rather the definition should be construed in a manner that allows an employee or job applicant to represent their sexual orientation to the employer, if necessary, without discrimination.

Second, a concern has been raised about whether the bill changes current law with respect to the provision of employer provided benefits. H.R. 5 should not be construed to prohibit a covered entity from enforcing any rules, policies, or agreements that are uniformly applied to all individuals regardless of actual or perceived sexual orientation or gender identity and that do not circumvent the purposes of this Act.

Third, a concern has been raised about whether the Equal Employment Opportunity Commission must collect information in the EEO-1 form related to sexual orientation and gender identity. In considering collection of such information, under H.R. 5, Congress suggests that the EEOC take due care of the sometimes private and personal nature of these characteristics. The EEOC should not solicit information in such a way that would require employers to assume an employees' or job applicants' sexual orientation or gender identity. Further, the EEOC should not require an employee or job applicant to disclose this information except on a voluntary basis. Any disclosure of information by employees or job applicants should be made in accordance with their gender identity.

Fourth, a concern has been raised about whether H.R. 5 changes current law with respect to the Pregnancy Discrimination Act. The underlying bill affirms that women affected by pregnancy should be treated the same for all employment-related purposes as other persons not so affected but similar in their ability or inability to work. H.R. 5 does nothing to expand or constrict current law.

Fifth, a concern has been raised about whether H.R. 5's amendments to current law related to "public accommodation" affect other employment-related statutes with "public accommodation" provisions. Changes to the definition of public accommodation in the underlying bill are contained solely within Section 201 of the 1964 Act. Courts should not construe these changes to affect other statutes or instances not included under Section 201 of the 1964 Act.

C. State Laws

While there is no comprehensive federal statute explicitly prohibiting discrimination on the basis of sexual orientation or gender identity, there is a patchwork of state nondiscrimination protections that explicitly prohibit such kind of discrimination. Currently, 22 states prohibit sexual orientation-based discrimination in employment and housing, while another 21 states prohibit discrimination in public accommodations, 17 in education, 15 in terms of credit opportunities, and 10 in jury selection. With respect to prohibitions on discrimination on the basis of gender identity, 21 states expressly prohibit such discrimination in employment and housing, 20 in public accommodations, 15 in education and credit opportunities, and 6 in jury selection.28

28/Sarah Warbelow, Cathryn Oakley & Collen Kutney, 2018 State Equality Index, Human Rights Campaign Foundation and Equality Federation Institute available at https://assets2.hrc.org/files/assets/ resources/SEI-2018-Report.pdf?--ga=2.85439129.1252111100.1553270783- 682024502.1549305648.

This patchwork of state law protections against LGBTQ discrimination leaves many individuals without legal protection from such discrimination. A March 2019 study by The Williams Institute at the University of California, Los Angeles School of Law found that an estimated 4.1 million LGBTQ workers (aged 16 and older) lived in states without explicit LGBTQ nondiscrimination protections in employment.29 Additionally, according to the study, 5.6 million LGBTQ adults (aged 18 and older) lived in states without explicit LGBTQ non- discrimination protections in housing, 6.9 million LGBTQ people (13 and older) lived in states without explicit LGBTQ non- discrimination protections in public accommodations, 2.1 million LGBTQ students (aged 15 and older) lived in states without explicit LGBTQ non-discrimination protections in education, and 8 million LGBTQ adults lived in states without LGBTQ non-discrimination protections in terms of credit opportunity.30

29/UCLA School of Law Williams Institute, LGBT People in the U.S. Not Protected by State Nondiscrimination Statutes, UCLA School of Law Williams Institute (Mar. 2019), available at https:// williamsinstitute.law.ucla.edu/wp-content/uploads/Equality-Act-March- 2019.pdf.

30/Id.

D. Religious Exemptions to Generally Applicable Federal Nondiscrimination Laws

The First Amendment's Free Exercise Clause prohibits governmental interference with the free exercise of religion. In 1990, the Supreme Court narrowed the scope of the Free Exercise Clause's protections in a series of decisions, to which Congress responded by passing the Religious Freedom Restoration Act ("RFRA").31 Until 1990, the Supreme Court applied strict scrutiny to any governmental action that imposed a burden on the free exercise of religion. Under strict scrutiny, a governmental burden on the free exercise of religion would be justified only if it served a compelling governmental interest and was the least restrictive means of serving that interest. In Employment Division v. Smith,32 the Supreme Court diluted its strict scrutiny approach to governmental burdens on the free exercise of religion where the burden was incidental to a generally applicable law. In an effort to protect followers of minority religions, Congress passed RFRA to re-establish the pre-Smith standard by subjecting generally applicable laws and other government actions that substantially burden the free exercise of religion to strict scrutiny.33

31/42 U.S.C. Sec. Sec. 2000bb et seq. (2019).

32/494 U.S. 872 (1990).

33/See S. Rept. No. 103-111, at 12 (1993) (RFRA's purpose was "only to overturn the Supreme Court's decision in Smith," not to "unsettle other areas of law").

While the Supreme Court in Employment Division held that incidental burdens on religious belief, alone, would be insufficient to justify an exemption from otherwise valid and generally applicable laws, it has also clarified, most recently in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, that government actions, including the enforcement of civil rights laws, that are motivated by animus towards a particular religious group would violate the Free Exercise Clause.34 Additionally, the First Amendment protects freedom of association, which provides additional constitutional protection for houses of worship and other religious entities with respect to the application of nondiscrimination laws.

34/Masterpiece Cakeshop, 138 S. Ct. at 1727.

The potential for RFRA to be used to justify broad exemptions to generally applicable nondiscrimination laws has grown considerably in recent years. For instance, in the R.G. & G.R. Harris Funeral Homes decision from the Sixth Circuit discussed earlier, the lower court had ruled in favor of the defendant funeral home, finding that RFRA could be invoked as a defense to a Title VII sex discrimination claim.35 Indeed, Justice Ruth Bader Ginsburg suggested with alarm in her dissent in Burwell v. Hobby Lobby that the Court's decision allowing a closely-held for-profit corporation to obtain an exemption from a generally applicable law under RFRA based on the owners' religious beliefs could lead to that Act being used to permit discrimination against minority groups,36 and the district court in the R.G. & G.R. Harris case cited Hobby Lobby in its RFRA analysis.37

35/R.G. & G.R. Harris Funeral Homes, 884 F.3d at 570.

36/573 U.S. 682, 769-70 (2014).

37/EEOC v. R.G. & G. R. Harris Funeral Homes, 201 F.Supp.3d 837, 863 (E.D. Mich. 2016).

In another recent example of RFRA's expansive application to nondiscrimination laws, the Trump Administration earlier this year cited RFRA in exempting federally-funded foster care and adoption agencies in South Carolina from the religious nondiscrimination protections38 provided by a Department of Health and Human Services regulation.39 This waiver allowed an evangelical Christian foster placement agency that received public funding to potentially discriminate against LGBTQ and non-Christian families based on the agency's religious beliefs in making a foster placement decision.40

38/Letter from Steve Wagner, Principal Deputy Assistant Secretary, Administration for Children and Families, Dep't of Health and Human Servs., to Henry McMaster, Governor, State of South Carolina (Jan. 23, 2019), available at https://governor.sc.gov/sites/default/files/ Documents/newsroom/HHS%20Response%20Letter%20to%20McMaster.pdf.

39/45 C.F.R. 75.300(c) (2019).

40/Associated Press, S.C. Group Can Reject Gays and Jews As Foster Parents, Trump Admin. Says, Jan. 24, 2019, available at https:// www.nbcnews.com/feature/nbc-out/s-c-group-can-reject-gays-jews-foster- parents-trump-n962306.

In addition to constitutional and statutory protections for religious free exercise and freedom of association, several exemptions in civil rights statutes provide further protection for religious entities in certain circumstances. For instance, Title II of the 1964 Act, which covers public accommodations, contains an exemption for private clubs and other establishments that are not open to the general public, and H.R. 5 does not amend this exemption in any way.41 With respect to houses of worship, it is clear that when houses of worship provide spaces and services to congregants and worshippers, and not to the public at large, they are not acting as places of public accommodation. This has been the case in the more than five decades that this exemption has been in effect. Moreover, clergy operating in their ministerial capacity would never be compelled to perform a religious ceremony in conflict with their religious beliefs, even when working in a place of public accommodation.

41/42 U.S.C. 2000a(e) (2019).

Title VII of the 1964 Act contains an explicit exemption for religious organizations from its general prohibition on employment discrimination. This exemption allows religious corporations, associations, and societies to limit employment to members of their own faith. The exemption also extends to schools, colleges, and universities owned, supported, controlled, or managed by a religious organization. Also, courts and the EEOC have recognized that Title VII requires that employers provide accommodation for an employee's sincerely-held religious beliefs and practices where the requested accommodation does not impose an undue hardship for the employer. Examples of such accommodations include allowing the wearing of head coverings that conflict with workplace dress codes, prayer breaks, and schedule changes to accommodate religious observances.

Additionally, the Supreme Court has recognized a "ministerial exception" with respect to the employment practices of religious organizations.42 Under this exception, rooted in the First Amendment, religious employers are exempt from nondiscrimination laws to the extent that an employment practice concerns employees who play roles with respect to the teaching or inculcating of faith.43 This exception applies broadly to include not only those employees who hold formal ministerial positions, but can also include any employee who organizes religious services, theology professors, and church music directors. It would not, however, apply with respect to employees serving in purely administrative, custodial, or janitorial roles.

42/Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, 565 U.S. 171 (2012).

43/Id.

Title VI of the 1964 Act, which prohibits discrimination in federally-funded programs, does not prohibit discrimination on the basis of religion. Therefore, religious entities are free to discriminate on the basis of religion when making decisions regarding employment or who may receive services from these programs and are free to determine who is and is not a member of their respective faiths.44

44/Courts historically have interpreted the scope of protection available under Title VI to be coextensive with that afforded by the Equal Protection Clause. In adding sex as a protected characteristic under Title VI, Congress intends for courts to extend that approach, continuing to apply strict scrutiny with respect to classifications based on race, color, or national origin, and intermediate scrutiny to those based on sex, as would be the case under the Equal Protection Clause. Additionally, courts should not draw any inference from H.R. 5's amendment of Title VI in some ways and not in others to mean that Congress implicitly endorses any particular judicial interpretations regarding any other aspect of Title VI.

The Committee acknowledges that the addition of sex as a protected characteristic under Title VI may raise some questions about how the revised Title VI should be read in relation to Title IX of the Education Amendments Act of 1972. It is the Committee's intention not to alter in any way Title IX or the scope or availability of its exemptions as they currently stand. Rather, Title IX and the revised Title VI should be read as being complementary provisions that provide overlapping protection against sex discrimination. Indeed, the addition of sex as a protected characteristic under Title VI should be read in light of the way that courts and enforcement agencies have interpreted other legal prohibitions against sex discrimination, including analogous constitutional and statutory provisions, so as to permit gender-specific programming and facilities when they are justified. For example, in United States v. Virginia Military Institute, 518 U.S. 515 (1996), the Supreme Court acknowledged that, while single-sex education may violate the Equal Protection Clause in the absence of a sufficient justification, single-sex education can also provide benefits to some students, particularly where such education serves to remedy past discrimination, and that other sex-specific distinctions may be permissible.

Also, while H.R. 5 does not amend Title IX to explicitly include sexual orientation and gender identity as protected characteristics, it expressly prohibits, in new proposed section 1106(c) of the 1964 Act that would be added by H.R. 5, the drawing of "any inference [based on the changes to current law made by H.R. 5] that any Federal law prohibiting a practice on the basis of sex does not prohibit discrimination on the basis of . . . sexual orientation, gender identity, or a sex stereotype."

Beyond the 1964 Act, the Fair Housing Act also specifically exempts those religious organizations that provide preferences to members of their own religion from its nondiscrimination provisions.45 That exemption, however, is not available to a religious organization that discriminates in its membership based on race, color, or national origin.46

45/42 U.S.C. Sec. 3607(a) (2019).

46/Id.

II. NEED FOR THE LEGISLATION

While federal statutes, state laws, court decisions, and agency interpretations provide some measure of protection against discrimination on the basis of sexual orientation and gender identity, such protections are incomplete and leave many LGBTQ Americans vulnerable to discrimination. Moreover, despite polling showing that society has become increasingly more accepting of LGBTQ people in recent years,47 these individuals continue to face numerous forms of discrimination because of their sexual orientation or gender identity in many areas. Comprehensive, consistent, and explicit federal nondiscrimination protections, therefore, are necessary to ensure that LGBTQ people are fully protected from invidious discrimination and integrated into all aspects of American life.

47/Gallup, Gay and Lesbian Rights (2018), available at https:// news.gallup.com/poll/1651/gay-lesbian-rights.aspx.

In addition, women also continue to face discrimination in public accommodations and federally-funded programs with less- than-complete protection under federal law. Adding sex as a protected characteristic to those nondiscrimination laws dealing with public accommodations and federally-funded programs would provide important additional protections for women who experience discrimination in these areas. African Americans and other racial minorities also have less-than-full protection from racial discrimination in the provision of public spaces and services such as those provided by retail or online businesses, a situation that the Equality Act will remedy.

The Reverend Dr. Dennis Wiley, Pastor Emeritus of Covenant Baptist United Church of Christ in Washington, D.C., in his testimony in support of H.R. 5 at the Committee's hearing on this legislation, emphasized the moral imperative of opposing ongoing discrimination, citing his own experiences of racial discrimination while growing up in the Jim Crow-era South and how that experience of discrimination sensitized him to all forms of discrimination.48 He also testified about his daughter coming out as a lesbian and how that only strengthened his already-strong commitment to equality for LGBTQ persons.49

48/Equality Act, Hearing on H.R. 5 Before the H. Comm. on the Judiciary, 116th Cong. (2019) [hereinafter "Equality Act Hearing"] (statement of the Rev. Dr. Dennis Wiley, Pastor Emeritus, Covenant Baptist United Church of Christ).

49/Id.

A. Employment

Anti-LGBTQ employment discrimination can take many forms, including failing to hire a job applicant, firing or refusing to promote an employee, or mistreating employees because of their gender identity or sexual orientation. These forms of discrimination can also significantly affect LGBTQ people's income, having a wide-ranging impact on their lives.

A 2013 Pew Research Center poll found that 21% of LGBTQ respondents reported being treated unfairly by an employer because of their gender identity or sexual orientation at one point in their lifetimes, with 5% of all respondents reporting that they experienced this form of discrimination in the past year.50 In a 2017 National Public Radio ("NPR"), Robert Wood Johnson Foundation, and Harvard survey ("NPR Survey"), 20% of LGBTQ respondents reported being discriminated against because of their gender identity or sexual orientation when applying for jobs and 22% reported discrimination in terms of unequal pay or when being considered for promotion.51 A 2016 survey by Prudential Financial also found that sexual orientation impacts income; both gay men and lesbian women earned, on average, less than their heterosexual counterparts.52

50/Pew Research Center, A Survey of LGBT Americans Chapter 2: Social Acceptance, June 13, 2013, available at https:// www.pewsocialtrends.org/2013/06/13/chapter-2-social-acceptance/ [hereinafter "Pew Research Center"].

5/1Nat'l Public Radio, the Robert Wood Johnson Foundation, & Harvard T.H. Chan School of Public Health, Discrimination in America: Experiences And Views Of LGBTQ Americans, Nov. 2017, available at https://cdn1.sph.harvard.edu/wp-content/uploads/sites/94/2017/11/NPR- RWJF-HSPH-Discrimination-LGBTQ-Final-Report.pdf [hereinafter "NPR Survey"].

52/Prudential Financial, The LGBT Financial Experience 2016-2017, June 2017, available at http://corporate.prudential.com/media/managed/ PrudentialLGBT2016-2017.pdf. The number of transgender respondents was too small in this study to draw statistical conclusions.

Moreover, the 2015 U.S. Transgender Survey--the largest survey of transgender people in the United States--found that 30% of respondents who had been employed in the past year had been fired, denied a promotion, or experienced mistreatment in the workplace because of their gender identity or expression. Additionally, 29% of respondents reported incomes that fell below 125% of the official poverty line.53

53/Sandy E. James, Jody L. Herman, Susan Rankin, Mara Keisling, Lisa Mottet, & Ma'ayan Anafi, The Report of the 2015 U.S. Transgender Survey, National Center for Transgender Equality (2016), available at https://transequality.org/sites/default/files/docs/usts/USTS-Full- Report-Dec17.pdf [hereinafter "Transgender Survey"].

Behind these statistics are people with stories of discrimination. For example, a teacher in Texas was put on paid administrative leave after showing the class a photo of her and her now-wife, as well as mentioning that the artist Jasper Johns had a same-sex partner.54 In Michigan, a transgender woman who worked at a funeral home was fired two weeks after coming out to her employer.55

54/Emma Platoff, A Gay Texas Teacher is on Leave after She Showed Students a Photo of Her Wife. She Has Few Legal Protections, Texas Trib., May 24, 2018, available at https://www.texastribune.org/2018/05/ 24/mansfield-isd-texas-art-teacher-LGBTQ-few-legal-protections/.

55/Adam Liptak, Can a Fired Transgender Worker Sue for Job Discrimination?, N.Y. Times (November 12, 2018), available at https:// www.nytimes.com/2018/11/12/us/politics/transgender-job- discrimination.html.

During the hearing, Majority witness Carter Brown, who lives in a state without explicit LGBTQ nondiscrimination protections, shared his experience of how his life changed after he was outed as a transgender man at his job. Prior to being outed, he earned three promotions in two years. Nevertheless, after a coworker outed him, he was the target of gossip and harassment and was eventually fired.56 As a result, he was forced to cash out his 401K and defer auto loans and mortgage payments to stay financially afloat.57 He also lost his health insurance.58 Mr. Brown explained that he supported H.R. 5 because, as a transgender black man who has experienced workplace discrimination, H.R. 5 would have protected him.59 In addition, he testified that the bill's expanded definition of public accommodations would protect him not only as a transgender man but as a person of color.60

56/Equality Act Hearing (statement of Carter Brown).

57/Id.

58/Id.

59/Id.

60/Id.

B. Housing

Housing is another area where LGBTQ people face discrimination because of their sexual orientation or gender identity. A 2011 federal study by the Department of Housing and Urban Development found that same-sex couples received fewer responses to e-mail inquiries about nbhousing opportunities than opposite-sex couples in metropolitan areas.61 Additionally, 23% of respondents in the 2015 U.S. Transgender Survey reported experiencing some form of housing discrimination in just the past year62 and 22% of LGBTQ respondents in the NPR Survey reported experiencing discrimination in housing.63 These forms of discrimination can impact people at all ages. For example, in Missouri, a lesbian couple that was in a committed relationship for four decades, was rejected from a retirement home they applied to join because they were in a same-sex relationship.64

61/Samantha Friedman, Angela Reynolds, Susan Scovill, Florence R. Brassier, Ron Campbell, and McKenzie Ballou, An Estimate Of Housing Discrimination Against Same-Sex Couples, U.S. Department of Housing and Urban Development Office of Policy Development and Research (June 2013) available at https://www.huduser.gov/portal/ Publications/pdf/Hsg_Disc_against_SameSexCpls_v3.pdf.

62/Transgender Survey.

63/NPR Survey.

64/Tim Fitzsimons, Judge Rules Against Lesbians Rejected From Retirement Home, NBC News (January 18, 2019) available at https:// www.nbcnews.com/feature/nbc-out/judge-rules-against-elderly-lesbians- rejected-retirement-home-n960211.

C. Public Accommodations

The Pew Research Center poll found that 23% of respondents reported receiving poor service in a restaurant, hotel, or other place of business open to the public because of their gender identity or sexual orientation.65 The 2015 U.S. Transgender survey found that 31% of respondents who visited a place of public accommodation where the staff or employees thought or knew they were transgender experienced at least one type of mistreatment, with 14% of respondents reporting that they had been denied equal treatment or service.66

65/Pew Research Center.

66/Transgender Survey.

Sometimes, denial of equal treatment or service can include being completely denied service. For example, in Indiana earlier this year, a same-sex couple was refused service at a tax service company because they were in a same-sex marriage.67 Similarly, last year in Arizona, a pharmacist refused to fill a prescription for hormone therapy for a transgender woman.68

67/Vic Ryckaert, An Indiana Tax Service Turned Away a Gay Couple. Both Sides Claim Discrimination, Indianapolis Star, Feb. 18, 2019, available at https://www.indystar.com/story/news/2019/02/18/rfra-same- sex-marriage-indiana-discrimination-russiaville-mike-pence/2903487002/.

68/Julia Jacobs, Transgender Woman Says CVS Pharmacist Refused to Fill Hormone Prescription, N.Y. Times, July 20, 2018, available at https://www.nytimes.com/2018/07/20/us/cvs-pharmacy-transgender-woman- nyt.html.

During the hearing, Jami Contreras, a Majority witness, shared the story of her six-year-old daughter being denied medical services as a newborn by a pediatrician. Contreras explained that when she and her wife decided to start a family they moved 230 miles to the Metro Detroit area to help ensure that their children would grow up in a community free from discrimination.69 She explained that she and her wife interviewed a number of pediatricians and found one who met their requirements and did not seem concerned that they were a same-sex married couple, but that when they arrived for their baby's appointment, a different doctor appeared and that when questioned, the doctor explained that the Contreras' handpicked pediatrician had "prayed on it" and decided she could not take on their daughter as a patient.70 She testified that she had continuing concerns that her daughter would experience additional discrimination and that Congress should pass H.R. 5 to prevent such discrimination in the future.71

69/Equality Act Hearing (statement of Jami Contreras).

70/Id.

71/Id.

LGBTQ people are not the only individuals who experience discrimination in public accommodations with no federal legal recourse. For instance, women are often charged more for goods and services marketed towards them than men are for nearly identical goods and services marketed towards them.72 A Study of Gender Pricing in New York City by the New York City Department of Consumer Affairs found that women's products cost 7% more than similar products for men and that women's products cost more 42% of the time while men's products cost more 18% of the time.73

72/Democratic staff of the Joint Economic Committee, The Pink Tax How Gender-Based Pricing Hurts Women's Buying Power, United States Congress Joint Economic Committee (Dec. 2016) available at https://www.jec.senate.gov/ public/_cache/files/8a42df04-8b6d-4949-b20b-6f40a326db9e/the-pink-tax_- how-gender-based-pricing-hurts-women-s-buying-power.pdf.

73/Anna Bessendorf, From Cradle to Cane: The Cost of Being a Female Consumer: A Study of Gender Pricing in New York City, New York City Department of Consumer Affairs (Dec. 2015) available at https:// www1.nyc.gov/assets/dca/downloads/pdf/partners/Study-of-Gender-Pricing- in-NYC.pdf.

Moreover, current federal antidiscrimination law does not cover all of the public spaces and services where people may face discrimination, such as retail stores, online businesses, homeless shelters, banks, and providers of health care, accounting, legal, and transportation services. For instance, in the past year, there have been notable examples of racial discrimination and profiling in retail stores, including an instance where a Nordstrom Rack employee called the police to investigate African-American teenagers who were shopping for prom outfits after wrongly suspecting them of shoplifting.74

74/Rachel Siegel, Nordstrom Rack Apologizes After Calling The Police on Three Black Teens who were Shopping for Prom, Wash. Post, May 9, 2018, available at https://www.washingtonpost.com/news/business/wp/ 2018/05/08/nordstrom-rack-called-the-police-on-three-black-teens-who- were-shopping-for-prom/?utm_term=.6627c82186fa.

D. Education

More than six in ten LGBTQ students in the GLSEN 2017 National School Climate Survey reported that they had experienced anti-LGBTQ discriminatory policies and practices in school. Moreover, nearly half of transgender and gender nonconforming students in the survey reported being prevented from using their chosen name or pronoun and a quarter reported being prevented from wearing clothing that matched their gender identity or expression.75

75/Joseph G. Kosciw, Emily A. Greytak, Adrian D. Zongrone, Caitlin M. Clark, & Nhan L. Truong, The 2017 National School Climate Survey The Experiences of Lesbian, Gay, Bisexual, Transgender, and Queer Youth in Our Nation's Schools, GLSEN (2018) available at https://www.glsen.org/ sites/default/files/ GLSEN%202017%20National%20School%20Climate%20Survey%20%28NSCS%29%20- %20Full%20Report.pdf.

One notable example of anti-transgender discrimination in education is the experience of Gavin Grimm, a transgender boy who was denied access to facilities that aligned with his gender identity in his Virginia high school.76 Grimm sued his school and his case was almost considered by the Supreme Court. The Supreme Court, however, sent the case back to the lower courts to be reconsidered after the Trump Administration rescinded Department of Education guidance on the rights of transgender students.77

76/Matt Stevens, Transgender Student in Bathroom Dispute Wins Court Ruling, N.Y. Times, May 22, 2018, available at https:// www.nytimes.com/2018/05/22/us/gavin-grimm-transgender-bathrooms.html.

77/American Civil Liberties Union, G.G. V. Gloucester County School Board, (updated Feb. 25, 2019), available at https:// www.aclu.org/cases/gg-v-gloucester-county-school-board. Many states and localities have enacted nondiscrimination measures to protect against gender identity-based discrimination. As both Professor Kenji Yoshino and Sunu Chandy of the National Women's Law Center testified at the Committee hearing on H.R. 5, the experience of these states and localities--some of which have had such kinds of protections in places for decades--demonstrates that protecting against gender identity discrimination has in no way resulted in a "parade of horribles," including any sort of increase in assault, sex crimes, or voyeurism targeting women in locker rooms, restrooms, and other shared spaces. Equality Act Hearing (statements of Sunu Chandy, Legal Director, National Women's Law Center and Kenji Yoshino, Chief Justice Earl Warren Professor of Constitutional Law, New York University School of Law).

Continues with Part 2 of 2

TARGETED NEWS SERVICE, Harwood Place, Springfield, Virginia, USA: Myron Struck, editor; 703/304-1897; editor@targetednews.com; https://targetednews.com