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The Equality Act:�

History, Implications, and Effects��April 28th, 2021

MIT Science Policy Initiative�LGBT Grad

RISE

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Community Norms for Discussions

We challenge all forms of bias

Even if it makes us feel uncomfortable
We hold each other accountable
Learning is a process, and it requires ongoing commitment

Our language matters

While we start with the premise that there is no intention to cause harm, we are mindful that our words and statements may have harmful impact
We don’t tolerate language that reinforces the marginalization or oppression of any group
When conflict arises, we engage in a way that prioritizes mutual understanding rather than division

We make space/take space

If we notice we’ve been speaking a lot, we give others an opportunity to share their ideas
If we notice we haven’t been speaking a lot, we speak up!

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Agenda

History of LGBT+ legislation in the U.S.
The Equality Act: what’s in it?
Breakout discussion #1
Breakout discussion #2

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History of U.S. LGBT+ legislation

1969

Stonewall riots:

Police raid a gay/transgender bar in Manhattan
Three days of protests against police harassment
Catalyzed large groups of LGBT activist and allies and the Gay Liberation movement

Image: news.harvard.edu

Becca

- In no way minimizing activism & community efforts before 1969 or saying Stonewall is the only reason changed happened; it was major, and sticking to more recent events b/c that’s where legislation happened and we only have 20 min

The Stonewall Riots, also called the Stonewall Uprising, began in the early hours of June 28, 1969 when New York City police raided the Stonewall Inn, a gay club located in Greenwich Village in New York City. Although the police were legally justified in raiding the club, which was serving liquor without a license among other violations, New York’s gay community had grown weary of the police department targeting gay clubs, many of which had already been closed.

Soon, the crowd began throwing bottles at the police. The protest spilled over into the neighboring streets, and order was not restored until the deployment of New York’s riot police sometime after 4 a.m. The raid sparked a riot among bar patrons and neighborhood residents as police roughly hauled employees and patrons out of the bar, leading to six days of protests and violent clashes with law enforcement outside the bar on Christopher Street, in neighboring streets and in nearby Christopher Park. The Stonewall Riots served as a catalyst for the gay rights movement in the United States and around the world.

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History of U.S. LGBT+ legislation

1969

1986

Bowers v. Hardwick

Michael Hardwick challenged Georgia state legislation outlawing consensual sodomy
Supreme Court ruled against him (5 - 4)
5 Justices felt that this is a question for legislatures, not the Courts

Willie

Fast forward 20 years past a lot of increasingly militant activism and organizing. We get to the 1980s, which was awful for the gay community in so many ways. Many grassroots organizations turned their immediate attention and resources to supporting people who were dying of AIDS.

But there were some advocates that were still trying to change laws.

The ACLU was looking for a case to bring before the Supreme Court to challenge the constitutionality of anti-sodomy laws. These laws had been written to marginalize sexual deviance and make every gay person a de facto criminal.

Unfortunately, in a 5-4 decision, Justice White wrote that this law did not violate any rights. He argued that if gay people had a problem with this, then they should address it through the legislative process rather than trying to get the Courts to create so-called “judge-made rights.”

The divided Court found that there was no constitutional protection for acts of sodomy, and that states could outlaw those practices. Justice Byron White argued that the Court has acted to protect rights not easily identifiable in the Constitution only when those rights are "implicit in the concept of ordered liberty" (Palko v. Connecticut, 1937) or when they are "deeply rooted in the Nation's history and tradition" (Griswold v. Connecticut, 1965). The Court held that the right to commit sodomy did not meet either of these standards. White feared that guaranteeing a right to sodomy would be the product of "judge-made constitutional law" and send the Court down the road of illegitimacy.

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History of U.S. LGBT+ legislation

1969

1986

Defense of Marriage Act

Section 2: states have the right to deny same-sex marriages
Section 3: same-sex marriages are not recognized for federal purposes (ex. taxes, financial aid)

1996

Willie

In the 1990s, Bill Clinton promised that as President he would be a champion for the gay community, but in hindsight he did not live up to that promise. Although he did increase gay visibility with some appointments to government positions, he failed to overturn the ban on gay and lesbian service members in the military, instead settling for the Don’t Ask, Don’t Tell compromise. Similarly, as Republicans rose to their highest levels of political power in decades on a so-called “family values” platform, they passed the Defense of Marriage Act with overwhelming support from the American people. Because 2/3 of Americans opposed marriage equality, the Republican Congress passed DOMA a few months before his election and baited him into signing the law. This allowed states to make same sex marriage illegal and to deny federal benefits of marriage to anyone who did get married in a state that allowed for it.

https://www.pewresearch.org/politics/2012/02/07/growing-public-support-for-same-sex-marriage/

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History of U.S. LGBT+ legislation

1969

2003

1986

Lawrence v. Texas

John Lawrence & Tyron Garner arrested for allegedly engaging in sexual intercourse
Supreme Court found this Texas law violated the Due Process Clause of the 14th Amendment
Overturned Bowers v. Hardwick

1996

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History of U.S. LGBT+ legislation

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

1969

2003

1986

1996

Lawrence v. Texas

John Lawrence & Tyron Garner arrested for allegedly engaging in sexual intercourse
Supreme Court found this Texas law violated the Due Process Clause of the 14th Amendment
Overturned Bowers v. Hardwick

Willie

This was a landmark decision by the Court; it removed the label of “criminal” that had been placed on every gay and lesbian citizen. This label had been used to justify so many hateful and discriminatory practices. As Justice Kennedy said “Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled”

In a 6-3 opinion delivered by Justice Anthony M. Kennedy, the Court held that the Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct violates the Due Process Clause. After explaining what it deemed the doubtful and overstated premises of Bowers, the Court reasoned that the case turned on whether Lawrence and Garner were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause. "Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government," wrote Justice Kennedy. "The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual," continued Justice Kennedy. Accordingly, the Court overruled Bowers. Justice Sandra Day O'Connor filed an opinion concurring in the judgment. Justices Clarence Thomas and Antonin Scalia, with whom Chief Justice William H. Rehnquist and Justices Thomas joined, filed dissents.

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History of U.S. LGBT+ legislation

Matthew Shepard Hate Crimes Prevention Act

Expanded 1969 federal hate crime law to cover crimes motivated by sexual orientation, gender, gender identity, and disability
Increased federal funding for hate crime investigations
FBI must track statistics on hate crimes based on gender and gender identity

1969

2003

1986

1996

2009

Willie

The 2000s continued with some successes, though unfortunately not always. Starting in the 90s and onwards, Democrats in Congress kept trying to pass anti-hate crime and employment non-discrimination bills for the gay community. Early visions of these bills only extended protections based on sexual orientation. As LGBT organizations began successful organizing in solidarity, there was pressure to make these bills trans-inclusive. There were internal divisions, even among LGBT legislators. Congressman Barney Frank joined the House in 1981 and was of an older generation than Congresswoman Tammy Baldwin. He felt that they didn’t have the votes for protecting trans workers, and that they should move forward with sexual orientation protection now while the trans community does the organizing work to win over hearts and minds of his Democratic colleagues. Congresswoman Baldwin disagreed; she argued that the moment needed solidarity and that they should move forward with trans-inclusion now while Democrats had Congress and the White House. Ultimately, the anti-hate crimes bill passed, though the employment non-discrimination act did not. But in both cases, the LGBT community was all in it together.

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History of U.S. LGBT+ legislation

U.S. v. Windsor

Edith Windsor filed suit after her wife passed and she was forced to pay $363K estate taxes
5 - 4 decision that DOMA denied equal rights under federal law (Section 3)
States can still outlaw gay marriage

1969

2003

1986

2013-2015

1996

Image: time.com

2009

Becca

Victories for the LGBT+ community continued four years later in two court cases that struck down central parts of DOMA, beginning with the case of U.S. versus Windsor. After her wife passed, Edith Windsor was charged $360K in federal taxes because her marriage (which had been performed in Canada) was not recognized by the government. She brought a case that this treatment was unconstitutional and fought her way through to the Supreme Court, which ruled 5-4 that states are the ones that can define marriage, not the federal government, so DOMA was unconstitutional. They ruled that DOMA imposed a “disadvantage” and “separate status”, and violated the 5th amendment (due process but for federal government instead of states)

Edith Windsor is the widow and sole executor of the estate of her late spouse, Thea Clara Spyer, who died in 2009. The two were married in Toronto, Canada, in 2007, and their marriage was recognized by New York state law. Thea Spyer left her estate to her spouse, and because their marriage was not recognized by federal law, the government imposed $363,000 in taxes. Had their marriage been recognized, the estate would have qualified for a marital exemption, and no taxes would have been imposed.

On November 9, 2010 Windsor filed suit in district court seeking a declaration that the Defense of Marriage Act was unconstitutional. At the time the suit was filed, the government's position was that DOMA must be defended. On February 23, 2011, the President and the Attorney General announced that they would not defend DOMA. On April 18, 2011, the Bipartisan Legal Advisory Group of the House of Representatives filed a petition to intervene in defense of DOMA and motioned to dismiss the case. The district court denied the motion, and later held that DOMA was unconstitutional. The U.S. Court of Appeals for the Second Circuit affirmed.

The Court also held that states have the authority to define marital relationships and that DOMA goes against legislative and historical precedent by undermining that authority. The result is that DOMA denies same-sex couples the rights that come from federal recognition of marriage, which are available to other couples with legal marriages under state law. The Court held that the purpose and effect of DOMA is to impose a "disadvantage, a separate status, and so a stigma" on same-sex couples in violation of the Fifth Amendment's guarantee of equal protection.

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History of U.S. LGBT+ legislation

U.S. v. Windsor

Edith Windsor filed suit after her wife passed and she was forced to pay $363K estate taxes
5 - 4 decision that DOMA denied equal rights under federal law (Section 3)
States can still outlaw gay marriage

1969

2003

1986

2013-2015

1996

Image: time.com

2009

Obergefell v. Hodges

Same-sex couples in OH, MI, KY, TN sued their states for anti-gay-marriage laws
Supreme Court ruled 5 - 4 that the right to marry is a fundamental liberty protected by the 14th Amendment
Struck down DOMA Section 2; religious organizations can still deny, but states cannot

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History of U.S. LGBT+ legislation

1969

2003

1986

2017

1996

Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission

The owner of Masterpiece Cakeshop refused to design a cake for a gay couple, brought the case to the Colorado Civil Rights Commission
The swing Justice (Kennedy) struggled immensely with how to balance the competing protections (i.e. LGBT non-discrimination vs religious exemption)
Kennedy wrote a very narrow opinion (2 liberals & 4 conservatives joined)

Civil Rights Commission wasn’t neutral enough in handling the case, which violated the 1st Amendment

2009

2013-2015

Becca

Narrow 7-2 opinion which really didn’t solve anything. It punted on all questions & said they thought a lower court should try again with less of an appearance of bias.
Balancing test, where both the Christian baker and the LBGT customer are both in some sense “minorities in need of protection”

Step 1: Is there a substantial burden of someone with a sincere belief?
Step 2: Does the government have a compelling interest for creating that substantial burden? (e.g. birth control coverage requirements on employers)
Step 3: Is the government working in the least restrictive means?

Kennedy seemed to be hoping to have public opinion continue its rapid progression so that this issue would subside without needing to lock in law undermining religious protections

Incredibly fast progress on marriage equality acceptance by the public

1997: 27% of Americans supported gay marriage
2017: approx 65% support

The Administrative Law Judge issued a written order finding in favor of Craig and Mullins, which was affirmed by the Colorado Civil Rights Commission. On appeal, the Colorado Court of Appeals subsequently affirmed the Commission's ruling.

The Court reversed in a 7-2 decision, holding that the Colorado Civil Rights Commission's conduct in evaluating a cake shop owner's reasons for declining to make a wedding cake for a same-sex couple violated the Free Exercise Clause. The Court explained that while gay persons and same-sex couples are afforded civil rights protections under the laws and the Constitution, religious and philosophical objections to same-sex marriage are protected views and can also be protected forms of expression. The Colorado law at issue in this case, which prohibited discrimination against gay people in purchasing products and services, had to be applied in a neutral manner with regard to religion.

The Court concluded that the Commission's actions violated the State's duty under the First Amendment not to use hostility toward religion or a religious viewpoint as a basis for laws or regulations. Under the facts of this case, the Court determined that Phillips' religious justification for his refusal to serve Craig and Mullins was not afforded the neutral treatment mandated by the Free Exercise Clause.

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History of U.S. LGBT+ legislation

1969

2003

1986

1996

Bostock v. Clayton County

Gerald Bostock fired from Clayton County for “conduct unbecoming of its employees”
Supreme Court found 6 - 3 that discriminating on the basis of sexual orientation or gender identity is necesarilly treating employees differently based on sex (and therefore a violation of the Civil Rights Act)

2009

2020

2017

2013-2015

Willie

Last year, the Supreme Court surprised a lot of people with a sweeping 6-3 opinion protecting LGBT employees from being fired on the basis of either sexual orientation or gender identity. Writing for the majority, Justice Gorsuch said that because the Civil Rights Act protects against discrimination on the basis of sex, it follows that it would be discrimination to fire a man for dating a man if you wouldn’t fire a woman for dating a man. This provides an important protection that had not been available to many LGBT workers in the US, though this only applies in the employment context. There is a lot of unsettled law in how far this opinion goes, and now without Justice Ginsburg, many experts worry that these protections are at risk.

An employer who fires an individual employee merely for being gay or transgender violates Title VII of the Civil Rights Act of 1964. Justice Neil Gorsuch authored the opinion for the 6-3 majority of the Court.

Title VII prohibits employers from discriminating against any individual “because of such individual’s race, color, religion, sex, or national origin.” Looking to the ordinary public meaning of each word and phrase comprising that provision, the Court interpreted to mean that an employer violates Title VII when it intentionally fires an individual employee based, at least in part, on sex. Discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat employees differently because of their sex—the very practice Title VII prohibits in all manifestations. Although it acknowledged that few in 1964 would have expected Title VII to apply to discrimination against homosexual and transgender persons, the Court gave no weight to legislative history because the language of the statute unambiguously prohibits the discriminatory practice.

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The Equality Act: what’s in it?

Modification of the Civil Rights Act (1964)

Adding “sex (including sexual orientation and gender identity)” as classes protected against discrimination in:

Public accommodations and spaces
Medical treatment
Public education
Federal funding
Transportation
Employment

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The Equality Act: what’s in it?

Modification of the Civil Rights Act (1964)

Expands spaces and businesses considered “public accommodations”

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The Equality Act: what’s in it?

Equal rights for LGBT+ people RE: credit, housing, and jury duty

Adds “gender identity”, “sex”, and “sexual orientation” as protected classes in the Fair Housing Act, the Equal Credit Opportunity Act, and Title 28 Chapter 121 (trial by jury process)��

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The Equality Act: what’s in it?

Equal rights for LGBT+ people RE: credit, housing, and jury duty

Adds “gender identity”, “sex”, and “sexual orientation” as protected classes in the Fair Housing Act, the Equal Credit Opportunity Act, and Title 28 Chapter 121 (trial by jury process)��

Explicitly states that the 1993 Religious Freedom Restoration Act cannot be used to claim exemption from discrimination on the basis of sex, gender identity, or sexual orientation

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Where is the Act now?

Passed the House on Feb. 25 (224-206)

Moved to the Senate; several hearings held throughout March

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Breakout discussion #1

What are your responses to the Act? What do you think it accomplishes? What does it miss? Do you think this will change public behavior?

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Breakout discussion #2

What protections does MIT have for LGBT+ students, and what does it miss? Does MIT culture reflect its policies? What policy change would you want to see in this area?

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Thank you!

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LGBT+ people face discrimination