Finally: Congress Acts to Protect LGBTQ Employees Under the Civil Rights Act
When the historic Civil Rights Act was signed into law by President Lyndon B. Johnson in 1964, it faced staunch opposition from southern members of Congress and a particularly vile 75-day filibuster in the Senate headlined by a former Ku Klux Klan member, who spoke for over 14 consecutive hours.
While the legislation overcame formidable obstacles to become a reality, it is difficult to believe that nearly 55 years since the law was enacted, it still grants no protection to the LGBTQ community.
The Civil Rights Act was originally proposed by President John F. Kennedy in 1963. President Kennedy boldly proclaimed at that time that the U.S. “will not be fully free until all of its citizens are free.”
But LGBTQ citizens, for all this time, have not been free.
28 states provide no protection for victims of LGBTQ discrimination, while another 2 provide only limited protections. This, combined with Congress’ 5 decade failure to act to update the Civil Rights Act, has unquestionably perpetuated widespread discrimination against LGBTQ individuals across most of the country.
For a brief time in 2017, it looked like the tide was beginning to turn. That year, the 7th Circuit ruled that sexual orientation discrimination was a form of sex discrimination that was protected under Title VII of the Civil Rights Act. The decision effectively overruled 50 years of federal court decisions refusing to provide a cause of action based on sexual orientation and provided real hope to LGBTQ individuals. But the 11th Circuit strongly dissented from that position, igniting a dramatic rift among federal courts and dealing great ambiguity concerning the application of the law to LGBTQ victims.
Many hoped that the U.S. Supreme court would eliminate the ambiguity by resolving the dispute in favor of the 5th Circuit’s interpretation, but expectations were low since the pre-Kavanaugh Court had refused to hear the issue altogether as recently as 2017. The confirmation of Justice Kavanaugh, creating a more conservative Court, further eroded these hopes. But the high court stunned many in April by agreeing to hear three cases that would almost certainly address the issue once-and-for-all.
Still, widespread concern spread that the new, right-leaning court would not issue a ruling to protect LGBTQ rights. These concerns appear to have merit, when scrutinizing the varied scope of the cases taken on by the Court. While two of those cases were brought by gay plaintiffs, a third was brought by a transgender woman, allowing skeptics to wonder whether the Supreme Court was looking to perhaps distinguish between LGBTQ categories, and protect the rights of some while not others.
These concerns may prove moot. While the Supreme Court prepared to hear these cases, Congress took decisive and historic action in passing the Equality Act on Friday. The bill provides LGBTQ individuals with widespread protections related to employment, housing, credit, education, public space access and more.
But smooth sailing, this is not. Despite the fact that 70% of Americans support LGBTQ protections, much like the original Civil Rights Act of 1964 before it, the Equality Act faces aggressive opposition. The Trump administration has shamefully opposed the bill and its passage in Congress, by a vote of 236–173, fell largely and disappointingly along party lines. It is unclear whether the Republican-led Senate will even hold a vote on the bill, let alone pass it.
But there is hope.
Senate Minority Leader Chuck Schumer has called on Majority Leader Mitch McConnell to take up the bill. Sen. McConnell, and his fellow Republicans, should do so, steping into the 21st century while heeding Martin Luther King Jr.’s profoundly moving 20th century words, in describing the Civil Rights Act as the “second emancipation.”
President Kennedy understood Dr. King’s words. He echoed similar sentiments while lobbying for the Civil Rights Act by declaring that the U.S. “will not be fully free until all of its citizens are free.”
It is undeniable that LGBTQ individuals do not share the same array of freedoms as others and that must change. From their own words, it is obvious where President Kennedy and Dr. King would stand today on the issues of LGBTQ rights and the Equality Act. History has judged the courage of those leaders well and of those who opposed the Civil Rights Act, dramatically less so. Ask yourself whether you remember the name of the Senate KKK member who opposed the Civil Rights Act in 1964. Or the name of any of the members of Congress who opposed it.
History is an excellent guide and the same will be true on the issue of LGBTQ rights.
With that in mind, I urge Mr. McConnell to stand with the legacies and behind the immortal words of President Kennedy and Dr. King. And decidedly not with those who opposed individual freedoms; advocating instead for perpetual discrimination. Those names have already been forgotten.