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Biden vows to enact Equality Act in first 100 days: 4 things to know about the legislation

Supreme Court Nominee Judge Neil Gorsuch meets with Senator Cory Gardner (R-CO) on Capitol Hill in Washington, U.S., February 1, 2017.
Supreme Court Nominee Judge Neil Gorsuch meets with Senator Cory Gardner (R-CO) on Capitol Hill in Washington, U.S., February 1, 2017. | (Photo: REUTERS/Joshua Roberts)

3. It would make sexual orientation and gender identity protected classes under the 1964 Civil Rights Act

Under the Equality Act, all references to “sex” in the landmark Civil Rights Act of 1964 would be replaced with the phrase “sex (including sexual orientation and gender identity).” The changes to the Civil Rights Act of 1964 address the stated purpose of the Equality Act, which is to “prohibit discrimination on the basis of sex, gender identity, and sexual orientation.”

The U.S. Supreme Court has already taken the position that employment discrimination or firing based on sexual orientation and gender identity violates Title VII of the Civil Rights Act, which prohibits discrimination on the basis of sex.

Earlier this year, the Supreme Court ruled 6-3 in Bostock v. Clayton County, Georgia that “an individual’s homosexuality or transgender status is not relevant to employment decisions” because “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”

In his majority opinion, Justice Neil Gorsuch acknowledged that, in some cases, the Religious Freedom Restoration Act “might supersede Title VII’s commands.” However, he concluded that the defendants in the case, including a Christian Michigan funeral home owner who fired an employee after he began identifying as female and dressing as a woman, did not demonstrate that “compliance with Title VII will infringe their own religious liberties in any way.”

Southern Baptist Theological Seminary professor Andrew T. Walker described the Bostock decision as “devastating for religious liberty,” adding that “it just gave the spirit of the Equality Act in a legal opinion, rather than in statute.”

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