“Full Federal Equality” – Laid Out For All To See. Let’s Get There.
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).
1. Public Accommodations (Title II, 1964 Civil Rights Act)(e.g., restaurants, hotels, theaters)
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.
2. PUBLIC FACILITIES.
This covers state (and subsidiary) owned and operated facilities affording public services (other than schools).
No Existing Filed Bills: Proposed in the AEB & Polis Omnibus Outline.
3. FEDERALLY FUNDED PROGRAMS.
TEXT: ’64 CRA, TITLE VI–NONDISCRIMINATION IN FEDERALLY ASSISTED PROGRAMS
No Existing Filed Bills. Proposed in the AEB. Not in Polis Omnibus Outline (major omission).
Existing Bills in Certain Areas using “Federal Funds” hook:
-Students in Public Schools: Student Non-discrimination Act (school programs receiving federal funds; covers SO&GI discrimination & bullying “harassment”).
-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.
’64 CRA, TITLE VII–EQUAL EMPLOYMENT OPPORTUNITY
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.)
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 (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-16b. Discriminatory practices prohibited
’95 CONGRESSIONAL ACCOUNTABILITY ACT
(a) Discriminatory practices prohibited
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;
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).
Related Bills: Direct Addition of Terms Proposed in the AEB. ENDA Proposed in Polis Omnibus Outline.
4. C. ARMED FORCES EMPLOYMENT.
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.
Proposed in AEB II, Not in Polis Omnibus Outline.
5. FAIR HOUSING.
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
Previously Filed Bill: Fair and Inclusive Housing Rights Act (not currently filed).
Proposed in AEB & Polis Omnibus Outline.
Existing Filed Bill: Student Non-discrimination Act (all students in primary and secondary schools receiving federal funds; covers bullying a/k/a harrassment).
Proposed in AEB II. Not in Polis Omnibus. But SNDA is proposed in Polis Omnibus and covers same areas).
Related Existing Filed Bill: Safe Schools Improvement Act (funding for local studies on bullying, including requirement for no-bullying policy in “agencies” receiving funding under this law; but doesn’t appear to create or require no-bullying policies in schools generally)
Existing Filed Bill: Freedom From Discrimination in Credit Act
Proposed in AEB & Polis Omnibus Outline.
8. FEDERAL MARRIAGE EQUALITY & DOMA REPEAL.
Or: “No state shall deny equal access to marriage under the laws of the state based on the race, color, sex, gender, gender identity, sexual orientation, nation origin, or religion of the two individuals seeking to form such union.”
Fourteenth Amendment: http://en.wikipedia.org/wiki/Equal_Protection_Clause
No Existing Filed Bills seeking Federal Marriage Equality.
DOMA Repeal: Section 1738C of 28 U.S.C. and Section 7 of 1 U.S.C. are hereby repealed.
28 U.S.C. 1738C. No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.
1 U.S.C. Sec. 7. In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife.
Proposed in AEB II.
Related Existing Filed Bills: The Respect for Marriage Act (RFMA), which repeals DOMA in part. DOMA repeal does not grant marriage equality in the 50 states as proposed above, but DOMA repeal would need to accompany any federal marriage non-discrimination law.
9. IMMIGRATION, DISABILITY & FAMILY LEAVE.
Existing Filed Bills. UAFA Text: http://www.govtrack.us/congress/billtext.xpd?bill=s112-821. UAFA is also included in a Comprehensive Immigration Reform bill: S.1258 – Comprehensive Immigration Reform Act of 201.
AOP Whip Count: http://www.actonprinciples.org/UAFA-senate-112/
Proposed in Polis Omnibus Outline, and AEB II.
9. B. DISABILITY.
(As proposed in the AEB): The Americans with Disabilities Act of 1990, as amended, 42 U.S.C. §§12101 et seq., and the Rehabilitation Act of 1973, as amended, 42 U.S.C. §706, are amended to repeal discriminatory provisions, as follows:
a. Delete bold/strike through text: 42 U.S.C. §12208 For the purposes of this chapter, the term “disabled” or “disability” shall not apply to an individual solely because that individual is a transvestite.
b. 42 U.S.C. §12211(b)(1). Delete the words “transvestism” and “transsexualism” and the phrase “gender identity disorders not resulting from physical impairments,” from the definition of “Certain conditions” excluded from coverage under the Act, as follows:
Existing TEXT (proposed deletion bold/strike through): (a) Homosexuality and bisexuality For purposes of the definition of “disability” in section 12102(2) of this title, homosexuality and bisexuality are not impairments and as such are not disabilities under this chapter. (b) Certain conditions Under this chapter, the term “disability” shall not include – (1) transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders; (2) compulsive gambling, kleptomania, or pyromania; or (3) psychoactive substance use disorders resulting from current illegal use of drugs.
c. 29 U.S.C. 705 (20) (F) (i). Delete the words “transvestism” and “transsexualism” and the phrase “gender identity disorders not resulting from physical impairments,” from the list excluding from protection an ‘individual with a disability’ as follows:
Existing TEXT: (proposed deletion bold/strike through): 705 (20) (F) Rights provisions; exclusion of individuals on basis of certain disorders. For the purposes of sections 791, 793, and 794 of this title, the term “individual with a disability” does not include an individual on the basis of– (i) transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders;
No Existing Filed Bills: Proposed in the American Equality Bill (AEB). Not in Polis Omnibus Outline.
9C. FAMILY LEAVE
FAMILY & MEDICAL LEAVE ACT
Changes to this law are proposed, in the absence of marriage equality, to expand concepts of parent and children to our domestic partnerships and parenthood relationships. If federal marriage equality is not achieved, this is an important alternative.
(As proposed in the AEB) The Family and Medical Leave Act of 1993, as amended, 29 U.S.C. §2611, is by adding the following bolded italicized sentences:
29 U.S.C. 2611 (7) Parent
(12) Son or daughter
No Existing Filed Bills. Proposed in the American Equality Bill (AEB) & Polis Omnibus Outline.
The definitions of SO&GI are the same across various pieces of existing and proposed legislation including: the Student Non-Discrimination Act, and Employment Non-Discrimination Act, and proposed American Equality Bill.
(2) GENDER IDENTITY- The term ‘gender identity’ means the gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual’s designated sex at birth.
(5) SEXUAL ORIENTATION- The term ‘sexual orientation’ means homosexuality, heterosexuality, or bisexuality.
“Sexual Orientation” in the Military Readiness Act:
`(f) Sexual Orientation- In this section, the term `sexual orientation’ means heterosexuality, homosexuality, or bisexuality, whether the orientation is real or perceived, and includes statements and consensual sexual conduct that is not otherwise illegal manifesting heterosexuality, homosexuality, or bisexuality.’.
“Harassment” in the Student Non-Discrimination Act:
Other qualifying language from ENDA:
CERTAIN SHARED FACILITIES- Nothing in this Act shall be construed to establish an unlawful employment practice based on actual or perceived gender identity due to the denial of access to shared shower or dressing facilities in which being seen unclothed is unavoidable, provided that the employer provides reasonable access to adequate facilities that are not inconsistent with the employee’s gender identity as established with the employer at the time of employment or upon notification to the employer that the employee has undergone or is undergoing gender transition, whichever is later.
ADDITIONAL FACILITIES NOT REQUIRED- Nothing in this Act shall be construed to require the construction of new or additional facilities.
DRESS AND GROOMING STANDARDS- Nothing in this Act shall prohibit an employer from requiring an employee, during the employee’s hours at work, to adhere to reasonable dress or grooming standards not prohibited by other provisions of Federal, State, or local law, provided that the employer permits any employee who has undergone gender transition prior to the time of employment, and any employee who has notified the employer that the employee has undergone or is undergoing gender transition after the time of employment, to adhere to the same dress or grooming standards for the gender to which the employee has transitioned or is transitioning.
Covers: gender, sexual orientation, gender identity.
International Law & Resolutions
International Resolutions Making it Clear that SO&GI Discrimination violates Human Rights Norms, creating a Clear Duty of signatory countries, including the United States, to outlaw and eradicate such discrimination.
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