Bills
| 3.23.22

Should Gender Identity and Sexual Orientation Be Considered ‘Protected Classes’ Under Civil Rights Law? (H.R. 5)

Do you support or oppose this bill?

What is H.R. 5?

(Updated February 16, 2022)

This bill would ban discrimination based on sexual orientation and/or gender identity in education, employment, housing, credit, and federal jury service. It would also prohibit discrimination (through changes to existing civil rights laws) in “public accommodations” and federal funding on the basis of gender, sexual orientation, and gender identity.

The definition of public accommodation under the Civil Rights Act of 1964 would be expanded to cover nearly every entity that offers goods, services, or programs — including retailers, banks, transportation, recreational centers, and healthcare providers, among others. For example, public restrooms count as a “public accommodation”, so it’d be illegal to deny a person access to a public restroom (or a locker room or dressing room) based on their gender identity.

Defendants against discrimination claims wouldn’t be allowed to use the Religious Freedom Restoration Act as a defense to alleged discrimination on the basis of sexual orientation or gender identity.

Additionally, the bill would allow the Dept. of Justice (DOJ) to intervene in equal protection actions in federal court on account of sexual orientation or gender identity. It could initiate also cases against state and local governments for discrimination that occurs in publicly owned facilities other than schools and colleges.

Existing protected classes include race, color, religion, sex, disability status, and national origin.

Argument in favor

The law needs to protect those people who could be discriminated against based on their sexual orientation or gender identity. Adding them to the list of protected classes under the Civil Rights Act will give discrimination victims recourse.

Argument opposed

States are already adopting laws to prevent discrimination on the basis of sexual orientation or gender identity. Alternatively, the federal government shouldn’t compel business owners to engage in activities that go against their religious beliefs.

Impact

Those who could be discriminated against based on their sexual orientation or gender identity, public and private entities, the Dept. of Justice, and the Attorney General.

Cost of H.R. 5

A CBO cost estimate is unavailable.

Additional Info

In-Depth: Rep. David Cicilline (D-RI) introduced this bill to extend anti-discrimination protections under current civil rights law to cover LGBT Americans:

“It is past time for the Equality Act to be written into law. Democrats are committed to delivering results for the people, and that means all the people. No American should ever be treated as less than equal in the eyes of the law. I’m looking forward to getting this bill through the House this spring. Senator McConnell should take it up without delay.”

House Majority Leader Steny Hoyer (D-MD) added:

“Congress must pass the Equality Act without delay.  The Trump Administration, as we were reminded yesterday with its ban on transgender Americans serving in our military and with its guidance making it harder for transgender students to attend school, has embraced a policy of discrimination against the LGBT community.  The President may have broken his promises to LGBT Americans, but House Democrats will never stop fighting for equality, justice, and respect for all. We must ensure that every American, no matter who they love or how they identify, has every opportunity to make it in America.”

House Republicans have largely expressed opposition to this bill, with Rep. James Comer (R-KY) saying he was “deeply troubled” by the fact that the bill “effectively guts the Religious Freedom Restoration Act”, and added:

“This bill is following in the tradition of others we have seen so far throughout this Congress. A clever name, an allegedly noble purpose, but a vehicle for serious, harmful consequences.”

During a committee hearing, Julia Beck, a lesbian feminist who was removed from the Baltimore LGBT Commission for describing a male transgender rapist as a male and that men can’t be lesbians, expressed opposition to this bill because it’d mean that:

“Male rapists will go to women’s prisons and likely assault female inmates as has already happened in the U.K.; female survivors of rape will be unable to contest male presence in women’s shelters; men will dominate women’s sports -- girls who would have taken first place will be denied scholastic opportunity; women who use male pronouns to talk about men may be arrested, fined, and banned from social media platforms; girls will stay home from school when they have their periods to avoid harassment by boys in mixed-space toilets; girls and women will no longer have a right to ask for female medical staff or intimate care providers, including elderly or disabled women who are at serious risk of sexual abuse; female security officers will no longer have the right to refuse to perform pat-downs or intimate searches of males who say they’re female and women undergoing security checks will no longer have the right to refuse to perform to refuse having those security checks being performed by men claiming a feminine identity… Everything I just listed is already happening and it’s only going to get worse if gender identity is recognized in federal law. I urge my fellow Democrats to wake up. Please acknowledge biological reality.”

This legislation has the support of 240 cosponsors, including 237 Democrats and 3 Republicans.


Of Note: Proponents of this bill cite the 31 states without laws on the books preventing discrimination based on sexual orientation or gender identity. While that doesn’t make it legal to discriminate on those grounds in those states, it does mean that such incidents have to be resolved through the judicial system via other claims — by local governments, or the policies of the company in question.

The enactment of laws in Mississippi and North Carolina preventing trans people from using single-sex restrooms ignited a national debate about discrimination based on a person's gender identity (the North Carolina bill was subsequently partially repealed). While similar proposals have been introduced in several other states, they have either stalled, been defeated, or vetoed.


Media:

Summary by Eric Revell

(Photo Credit: Crcjfly via Wikimedia / Public Domain)