ACT On Principles

Hello everyone,

Below is an outline of what “Full Federal Equality” entails for crafting an omnibus LGBT equality bill that would outlaw discrimination based on SO&GI in America on an equal basis to that long afforded other groups/statuses. It sets forth all the existing laws, the language where SO&GI is needed, and proposed new provisions where none exists.

Currently, Rep. Jared Polis from Bolder, CO (openly gay) is engaged in an effort to craft an omnibus LGBT equality bill to be filed this year, or by January. He issued an outline covering much of what’s needed, but not all by far. So this was prepared to inform that work, and it has been shared with the Congressional LGBT Equality Caucus co-chairs.

The hope is that Rep. Polis and the Congressional LGBT Equality Caucus will add the missing provisions, which are major, including (a) Title VI of the Civil Rights Act of 1964, which outlaws discrimination in all federally-funded programs, (b) Federal Marriage Equality to end marriage discrimination across the country, and (c) non-discrimination in Armed Services employment, which was not accomplished by DADT repeal.

Unfortunately, so far it does not appear that the LGBT Caucus is actively coordinating around strategy, or on the omnibus, but rather that individual issues are being addressed by certain Representatives as their own pet-legislative projects. The hope, however, is that this will change in response to growing demand for a coordinated, comprehensive equality strategy.

For a few years now, the mantra of Full Federal Equality has resonated with the grassroots, as evidenced by the National Equality March which brought 250,000 people to D.C., and the The American Equality Bill, which has ever growing support as seen in bold direct actions, City Council Resolutions and Proclamations. So now, as we approach 2012, we hope to see a bill that reflects this growing sentiment and our entitlement, as a matter of international human rights law, to full non-discrimination protections.

Of course, inclusion in the laws themselves will not immediately change the homo/transphobia we suffer as objects of abuse in our own society. But the debate for our inclusion and equality under the law, and the subsequent enforcement of those laws once we’re in, can go a long way toward changing the oppressive culture impeding our human rights, safety and happiness.

Please study this so we can be well informed and hold the key advocates accountable to the pursuit of our full equality. Knowledge is power in politics, and “we the people” need to harness that power today in order to manifest our equality tomorrow.

Fortunately public opinion is growing steadily on our side, so the main task before the grassroots is to shift the “movement agenda” controlled and limited by HRC, NGLTF, and the LGBT Congressional Caucus, from pieces of the pie to the whole enchilada.

This is still a tough challenge of course. But it is doable by a determined few if we work together in common cause and with shared intention, which grows simply by reading and sharing this information.

Let’s make 2012 the year Full Federal Equality hits the national stage, so that our equality is an unavoidable priority in 2013. We’ve waited long enough, and our time has come.

LANGUAGE OF EXISTING

NON-DISCRIMINATION LAWS & JUDICIAL DECISIONS

AND PROPOSED SO&GI INCLUSION

FOR FULL FEDERAL EQUALITY

(includes overview of existing filed bills)

This is intended to present the scope of “full federal equality” for SO&GI, setting forth the existing language and laws, and the needed additions.

With this coverage in an omnibus bill, the LGBT community would have an organizing beacon, a statement of our dignity, and a clear expression of our human right to full and equal non-discrimination protections.

This list encompasses all the provisions of The American Equality Bill, which already covered existing civil rights laws, as well as Federal Marriage Equality, the Uniting American Families Act (Immigration), and Armed Services employment.

(UPDATE NOTE:  The AEB, as of Feb 2012, now covers all of these provisions, and has been retitled the AEB II).

CONTENT:

1.  Public Accommodations (Title II, 1964 Civil Rights Act)(e.g., restaurants, hotels, theaters)
2.  Public Facilities (Title III, 1964 Civil Rights Act)(e.g., courthouses, jails, hospitals, parks)
3.  Federally-Funded Programs (Title VI, 1964 Civil Rights Act)(e.g., adoption, police, schools, homeless youth, heath care, contractors, etc.)
4.  Employment: Private Sector, Civilian & Military Government (Title VII, 1964 Civil Rights Act; 1978 Civil Service Reform Act; 1991 Government Employee Rights Act; 1995 Congressional Accountability Act; Armed Services, 10 U.S.C. Chapter 37).
5.  Housing (Title VIII, 1968 Civil Rights Act a/k/a Fair Housing Act) (e.g., rental, purchase, financing)
6.  Education (Title IX, 1972 Educational Amendments) (e.g., equal access, bullying)
7.  Credit (Equal Credit Opportunity Act) (e.g., credit cards)
8.  Federal Marriage Equality (1967 Supreme Court Decision, Loving v. Virginia) & DOMA Repeal (Respect for Marriage Act).
9.  Immigration, Disability, Family Leave (Uniting American Families Act (proposed); The Americans With Disabilities Act; and Family and Medical Leave Act).
10.  Definitions (of SO&GI, Harassment, Other Provisions).

1. PUBLIC ACCOMMODATIONS.

This covers hotels, restaurants, and entertainment facilities opened to the public, but privately owned and operated.

’64 CIVIL RIGHTS ACT (CRA), TITLE II.
SEC. 201. (a) All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, and privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, sexual orientation, gender identity, or national origin. (42 U.S.C. 2000a) (http://uspolitics.about.com/od/usgovernment/l/bl_civil_rights_act_2.htm)

No Existing Filed Bills: Proposed in the American Equality Bill (AEB) & Polis Omnibus Outline.

2. PUBLIC FACILITIES.

This covers state (and subsidiary) owned and operated facilities affording public services (other than schools).
’64 CRA, TITLE III
SEC. 301. (a) Whenever the Attorney General receives a complaint in writing signed by an individual to the effect that he is being deprived of or threatened with the loss of his right to the equal protection of the laws, on account of his race, color, religion, sexual orientation, gender identity, or national origin, by being denied equal utilization of any public facility which is owned, operated, or managed by or on behalf of any State or subdivision thereof, other than a public school or public college as defined in section 401 of title IV hereof, and the Attorney General believes the complaint is meritorious and certifies that the signer or signers of such complaint are unable, in his judgment, to initiate and maintain appropriate legal proceedings for relief and that the institution of an action will materially further the orderly progress of desegregation and equal access in public facilities, the Attorney General is authorized to institute for or in the name of the United States a civil action in any appropriate district court of the United States against such parties and for such relief as may be appropriate, and such court shall have and shall exercise jurisdiction of proceedings instituted pursuant to this section. The Attorney General may implead as defendants such additional parties as are or become necessary to the grant of effective relief hereunder. (42 U.S.C. Sec. 2000b) (http://www.justice.gov/crt/about/spl/42usc2000b.php)

No Existing Filed Bills: Proposed in the AEB & Polis Omnibus Outline.

3. FEDERALLY FUNDED PROGRAMS.
The scope of this provision can not be overstated. It reaches to every program and contract that receives federal funding. The Department of Justice coordinates government-wide compliance processes, and has vast enforcement jurisdiction, and states replicate these enforcement activities, as recipient themselves of federal funds. This is the provision via which non-discrimination, as the federal policy of this country, is enforced using the power of the multi-trillion dollar gov’t budget. It reaches into almost every imaginable gov’t service from adoption agencies, to schools, to state and municipal governments, to police departments, hospitals and health care, homeless youth programs, social services, and so on.

TEXT: ’64 CRA, TITLE VI–NONDISCRIMINATION IN FEDERALLY ASSISTED PROGRAMS
SEC. 601. No person in the United States shall, on the ground of race, color, sexual orientation, gender identity, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. (42 U.S.C §§ 2000d). (http://www.justice.gov/crt/about/cor/coord/titlevistat.php).

No Existing Filed Bills. Proposed in the AEB. Not in Polis Omnibus Outline (major omission).

Existing Bills in Certain Areas using “Federal Funds” hook:
-Adoption: Every Child Deserves A Family (“An entity that receives Federal assistance or contracts with an entity that receives Federal assistance, and is involved in adoption or foster care placements may not–” discriminate.)
AOP Whip Count: http://www.actonprinciples.org/ECDF-house-112/

-Students in Public Schools: Student Non-discrimination Act (school programs receiving federal funds; covers SO&GI discrimination & bullying “harassment”).
AOP Whip Count: http://www.actonprinciples.org/SNDA-house-112/

-Health Care: Ending LGBT Health Disparities Act (not currently refiled) (This is not at all the same scope as Title VI even as to health programs receiving federal funds, but includes lots of provisions tailored to certain areas: medicaid, culturally appropriate care, child insurance, studies, previously filed by Baldwin, not yet refiled but planned; sent to 10 committees last time).

4. EMPLOYMENT: PRIVATE, CIVILIAN GOVERNMENT, ARMED SERVICES.
4.A. PRIVATE EMPLOYMENT.

’64 CRA, TITLE VII–EQUAL EMPLOYMENT OPPORTUNITY
SEC. 703. (a) It shall be an unlawful employment practice for an employer–
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, sexual orientation, gender identity, or national origin; or
(2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, sexual orientation, gender identity, or national origin.
(42 U.S.C. 2000e-2 (a) (1) & (2)). (http://www.introlaw.com/ed/laws/titlevii/42usc2000e-02.html)

NOTE: DOJ and Courts have already used: “sex stereotyping” as covered under “sex”, to reach issues of sexual orientation/gender protection. 42 U.S.C. 2000e.

Existing Filed Bill: Employment Non-Discrimination Act (It is debated whether ENDA effectuates the same impact as adding SO&GI directly to the existing laws as indicated above. But ENDA is clearly intended to be the substantial equivalent, crafted by creating a parallel system that incorporates by direct reference the same definitions, and other enforcement aspects of Title VII, and the Gov’t provisions below, including language providing that the “procedures and remedies” are the same as for those claiming a violation under Title VII, and the laws below.)
AOP Whip Count: http://www.actonprinciples.org/ENDA-house-112/

Related Bills: Direct Addition of Terms Proposed in the AEB.

ENDA proposed in Polis Omnibus Outline.

4.B. CIVILIAN GOVERNMENT EMPLOYMENT.

’78 CIVIL SERVICE REFORM ACT
5 U.S.C.2302 (b) Any employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority – (1) discriminate for or against any employee or applicant for employment – (A) on the basis of race, color, religion, sex, sexual orientation, gender identity, or national origin, as prohibited under section 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-16); … (http://codes.lp.findlaw.com/uscode/5/III/A/23/2302)

5 U.S.C. 2302 (d) This section shall not be construed to extinguish or lessen any effort to achieve equal employment opportunity through affirmative action or any right or remedy available to any employee or applicant for employment in the civil service under – (1) section 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-16), prohibiting discrimination on the basis of race, color, religion, sex, sexual orientation, gender identity, or national origin;  (http://codes.lp.findlaw.com/uscode/5/III/A/23/2302)

’91 GOV’T EMPLOYEE RIGHTS ACT
42 U.S.C. 2000e-16a (b) Purpose
The purpose of sections 2000e-16a to 2000e-16c of this title is
to provide procedures to protect the rights of certain government
employees, with respect to their public employment, to be free of
discrimination on the basis of race, color, religion, sex, sexual orientation, gender identity, national origin, age, or disability. (http://www.introlaw.com/ed/laws/titlevii/42usc2000e-16a.html)

42 U.S.C. 2000e-16b. Discriminatory practices prohibited
(a) Practices
All personnel actions affecting the Presidential appointees
described in section 1219 of title 2 or the State employees
described in section 2000e-16c of this title shall be made free
from any discrimination based on -
(1) race, color, religion, sex, sexual orientation, gender identity, or national origin, within the meaning of section 2000e-16 of this title; …
( http://www.introlaw.com/ed/laws/titlevii/42usc2000e-16a.html)

’95 CONGRESSIONAL ACCOUNTABILITY ACT
42 U.S.C. 1311

(a) Discriminatory practices prohibited
All personnel actions affecting covered employees shall be made free from any discrimination based on—
(1) race, color, religion, sex, sexual orientation, gender identity, or national origin, within the meaning of section 703 of the Civil Rights Act of 1964 (42 U.S.C. 2000e–2); …
(http://www.law.cornell.edu/uscode/html/uscode02/usc_sec_02_00001311—-000-.html)

3 U.S.C. 411 (a) Discriminatory Practices Prohibited. – All personnel actions affecting covered employees shall be made free from any discrimination based on – (1) race, color, religion, sex, sexual orientation, gender identity, or national origin, within the meaning of section 703 of the Civil Rights Act of 1964;
( http://codes.lp.findlaw.com/uscode/3/5/II/A/411)

Existing Filed Bill: Employment Non-Discrimination Act. (ENDA appears to provide substantially equivalent coverage to that which would be effected by direct inclusion in these provisions, but does not directly insert these terms into the existing laws, as explained above under Private Employment).
AOP Whip Count: http://www.actonprinciples.org/ENDA-house-112/

Related Bills: Direct Addition of Terms Proposed in the AEB. ENDA Proposed in Polis Omnibus Outline.

4. C. ARMED FORCES EMPLOYMENT.
10 U.S.C. Chapter 37 (As needed to cover SO&GI non-discrimination).

DADT repeal did not outlaw discrimination based on SO or GI in the Armed Services. (See Public Law: 111-321 “Don’t Ask Don’t Tell Repeal Act” in reference to 10 U.S.C. Chapter 37, Sec. 654, http://uscode.house.gov/download/pls/10C37.txt).

Previously Filed Existing Bills: The Military Readiness Enhancement Act, (which creates a new section: 10 U.S.C. 656) was filed previously to end SO discrimination in the military, but did not include GI. (Text: http://thomas.loc.gov/cgi-bin/query/z?c111:S.3065:).

Something similar is need that covers both SO&GI.
AOP Whip Count: Not yet refiled.

Proposed in AEB II, Not in Polis Omnibus Outline.

5. FAIR HOUSING.
Title VIII of THE CIVIL RIGHTS ACT of 1968 (not 1964)

Title VIII of the Civil Rights Act of 1968 (Fair Housing Act), as amended, prohibits discrimination in the sale, rental, and financing of dwellings, and in other housing-related transactions, based on race, color, national origin, religion, sex, familial status (including children under the age of 18 living with parents or legal custodians, pregnant women, and people securing custody of children under the age of 18), and handicap (disability).

TEXT: Sec. 804. [42 U.S.C. 3604] Discrimination in sale or rental of housing and other prohibited practices
As made applicable by section 803 of this title and except as exempted by sections 803(b) and 807 of this title, [...]