Text of US SB 393 (2021)

II 117TH CONGRESS 1ST SESSION S. 393 To prohibit discrimination on the basis of sex, gender identity, and sexual orientation, and for other purposes. IN THE SENATE OF THE UNITED STATES FEBRUARY 23, 2021 Mr. MERKLEY (for himself, Ms. BALDWIN, Mr. BOOKER, Mr. BENNET, Mr. BLUMENTHAL, Mr. BROWN, Ms. CANTWELL, Mr. CARDIN, Mr. CARPER, Mr. CASEY, Mr. COONS, Ms. CORTEZ MASTO, Ms. DUCKWORTH, Mr. DURBIN, Mrs. FEINSTEIN, Mrs. GILLIBRAND, Ms. HASSAN, Mr. HEIN- RICH, Mr. HICKENLOOPER, Ms. HIRONO, Mr. KAINE, Mr. KELLY, Mr. KING, Ms. KLOBUCHAR, Mr. LEAHY, Mr. LUJA´N, Mr. MARKEY, Mr. MENENDEZ, Mr. MURPHY, Mrs. MURRAY, Mr. OSSOFF, Mr. PADILLA, Mr. PETERS, Mr. REED, Ms. ROSEN, Mr. SANDERS, Mr. SCHATZ, Mr. SCHUMER, Mrs. SHAHEEN, Ms. SINEMA, Ms. SMITH, Ms. STABENOW, Mr. TESTER, Mr. VAN HOLLEN, Mr. WARNER, Mr. WARNOCK, Ms. WAR- REN, Mr. WHITEHOUSE, and Mr. WYDEN) introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To prohibit discrimination on the basis of sex, gender identity, and sexual orientation, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Equality Act’’. 4 VerDate Sep 11 2014 17:22 Mar 12, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S393.IS S393 2 •S 393 IS SEC. 2. FINDINGS AND PURPOSE. 1 (a) FINDINGS.—Congress finds the following: 2 (1) Discrimination can occur on the basis of the 3 sex, sexual orientation, gender identity, pregnancy, 4 childbirth, or a related medical condition of an indi- 5 vidual, as well as because of sex-based stereotypes. 6 Each of these factors alone can serve as the basis 7 for discrimination, and each is a form of sex dis- 8 crimination. 9 (2) A single instance of discrimination may 10 have more than one basis. For example, discrimina- 11 tion against a married same-sex couple could be 12 based on the sex stereotype that marriage should 13 only be between heterosexual couples, the sexual ori- 14 entation of the two individuals in the couple, or 15 both. In addition, some persons are subjected to dis- 16 crimination based on a combination or the intersec- 17 tion of multiple protected characteristics. Discrimi- 18 nation against a pregnant lesbian could be based on 19 her sex, her sexual orientation, her pregnancy, or on 20 the basis of multiple factors. 21 (3) Lesbian, gay, bisexual, transgender, and 22 queer (referred to as ‘‘LGBTQ’’) people commonly 23 experience discrimination in securing access to pub- 24 lic accommodations—including restaurants, senior 25 centers, stores, places of or establishments that pro- 26 VerDate Sep 11 2014 17:22 Mar 12, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S393.IS S393 3 •S 393 IS vide entertainment, health care facilities, shelters, 1 government offices, youth service providers including 2 adoption and foster care providers, and transpor- 3 tation. Forms of discrimination include the exclusion 4 and denial of entry, unequal or unfair treatment, 5 harassment, and violence. This discrimination pre- 6 vents the full participation of LGBTQ people in so- 7 ciety and disrupts the free flow of commerce. 8 (4) Women also have faced discrimination in 9 many establishments such as stores and restaurants, 10 and places or establishments that provide other 11 goods or services, such as entertainment or transpor- 12 tation, including sexual harassment, differential pric- 13 ing for substantially similar products and services, 14 and denial of services because they are pregnant or 15 breastfeeding. 16 (5) Many employers already and continue to 17 take proactive steps, beyond those required by some 18 States and localities, to ensure they are fostering 19 positive and respectful cultures for all employees. 20 Many places of public accommodation also recognize 21 the economic imperative to offer goods and services 22 to as many consumers as possible. 23 (6) Regular and ongoing discrimination against 24 LGBTQ people, as well as women, in accessing pub- 25 VerDate Sep 11 2014 17:22 Mar 12, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S393.IS S393 4 •S 393 IS lic accommodations contributes to negative social 1 and economic outcomes, and in the case of public ac- 2 commodations operated by State and local govern- 3 ments, abridges individuals’ constitutional rights. 4 (7) The discredited practice known as ‘‘conver- 5 sion therapy’’ is a form of discrimination that harms 6 LGBTQ people by undermining individuals’ sense of 7 self worth, increasing suicide ideation and substance 8 abuse, exacerbating family conflict, and contributing 9 to second-class status. 10 (8) Both LGBTQ people and women face wide- 11 spread discrimination in employment and various 12 services, including by entities that receive Federal fi- 13 nancial assistance. Such discrimination— 14 (A) is particularly troubling and inappro- 15 priate for programs and services funded wholly 16 or in part by the Federal Government; 17 (B) undermines national progress toward 18 equal treatment regardless of sex, sexual ori- 19 entation, or gender identity; and 20 (C) is inconsistent with the constitutional 21 principle of equal protection under the Four- 22 teenth Amendment to the Constitution of the 23 United States. 24 VerDate Sep 11 2014 17:22 Mar 12, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S393.IS S393 5 •S 393 IS (9) Federal courts have widely recognized that, 1 in enacting the Civil Rights Act of 1964, Congress 2 validly invoked its powers under the Fourteenth 3 Amendment to provide a full range of remedies in 4 response to persistent, widespread, and pervasive 5 discrimination by both private and government ac- 6 tors. 7 (10) Discrimination by State and local govern- 8 ments on the basis of sexual orientation or gender 9 identity in employment, housing, and public accom- 10 modations, and in programs and activities receiving 11 Federal financial assistance, violates the Equal Pro- 12 tection Clause of the Fourteenth Amendment to the 13 Constitution of the United States. In many cir- 14 cumstances, such discrimination also violates other 15 constitutional rights such as those of liberty and pri- 16 vacy under the due process clause of the Fourteenth 17 Amendment. 18 (11) Individuals who are LGBTQ, or are per- 19 ceived to be LGBTQ, have been subjected to a his- 20 tory and pattern of persistent, widespread, and per- 21 vasive discrimination on the bases of sexual orienta- 22 tion and gender identity by both private sector and 23 Federal, State, and local government actors, includ- 24 ing in employment, housing, and public accommoda- 25 VerDate Sep 11 2014 17:22 Mar 12, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S393.IS S393 6 •S 393 IS tions, and in programs and activities receiving Fed- 1 eral financial assistance. This discrimination inflicts 2 a range of tangible and intangible harms, sometimes 3 even including serious physical injury or death. An 4 explicit and comprehensive national solution is need- 5 ed to address this discrimination, including the full 6 range of remedies available under the Civil Rights 7 Act of 1964. 8 (12) Discrimination based on sexual orientation 9 includes discrimination based on an individual’s ac- 10 tual or perceived romantic, emotional, physical, or 11 sexual attraction to other persons, or lack thereof, 12 on the basis of gender. LGBTQ people, including 13 gender nonbinary people, also commonly experience 14 discrimination because of sex-based stereotypes. 15 Many people are subjected to discrimination because 16 of others’ perceptions or beliefs regarding their sex- 17 ual orientation. Even if these perceptions are incor- 18 rect, the identity imputed by others forms the basis 19 of discrimination. 20 (13) Numerous provisions of Federal law ex- 21 pressly prohibit discrimination on the basis of sex, 22 and Federal courts and agencies have correctly in- 23 terpreted these prohibitions on sex discrimination to 24 include discrimination based on sexual orientation, 25 VerDate Sep 11 2014 17:22 Mar 12, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S393.IS S393 7 •S 393 IS gender identity, and sex stereotypes. In particular, 1 the Supreme Court of the United States correctly 2 held in Bostock v. Clayton County, 140 S. Ct. 1731 3 (2020) that the prohibition on employment discrimi- 4 nation because of sex under title VII of the Civil 5 Rights Act of 1964 inherently includes discrimina- 6 tion because of sexual orientation or transgender 7 status. 8 (14) This Act makes explicit that existing Fed- 9 eral statutes prohibiting sex discrimination in em- 10 ployment (including in access to benefits), 11 healthcare, housing, education, credit, and jury serv- 12 ice also prohibit sexual orientation and gender iden- 13 tity discrimination. 14 (15) LGBTQ people often face discrimination 15 when seeking to rent or purchase housing, as well as 16 in every other aspect of obtaining and maintaining 17 housing. LGBTQ people in same-sex relationships 18 are often discriminated against when two names as- 19 sociated with one gender appear on a housing appli- 20 cation, and transgender people often encounter dis- 21 crimination when credit checks or inquiries reveal a 22 former name. 23 (16) National surveys, including a study com- 24 missioned by the Department of Housing and Urban 25 VerDate Sep 11 2014 17:22 Mar 12, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S393.IS S393 8 •S 393 IS Development, show that housing discrimination 1 against LGBTQ people is very prevalent. For in- 2 stance, when same-sex couples inquire about housing 3 that is available for rent, they are less likely to re- 4 ceive positive responses from landlords. A national 5 matched-pair testing investigation found that nearly 6 one-half of same-sex couples had encountered ad- 7 verse, differential treatment when seeking elder 8 housing. According to other studies, transgender 9 people have half the homeownership rate of non- 10 transgender people and about 1 in 5 transgender 11 people experience homelessness. Another survey 12 found that 82 percent of gender nonbinary people 13 experiencing homelessness lacked access to shelter. 14 (17) As a result of the absence of explicit prohi- 15 bitions against discrimination on the basis of sexual 16 orientation and gender identity, credit applicants 17 who are LGBTQ, or are perceived to be LGBTQ, 18 have unequal opportunities to establish credit. 19 LGBTQ people can experience being denied a mort- 20 gage, credit card, student loan, or many other types 21 of credit simply because of their sexual orientation 22 or gender identity. 23 (18) Numerous studies demonstrate that 24 LGBTQ people, especially transgender people and 25 VerDate Sep 11 2014 17:22 Mar 12, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S393.IS S393 9 •S 393 IS women, are economically disadvantaged and at a 1 higher risk for poverty compared with other groups 2 of people. For example, the poverty rate for older 3 women in same-sex couples is twice that of older dif- 4 ferent-sex couples. 5 (19) The right to an impartial jury of one’s 6 peers and the reciprocal right to jury service are 7 fundamental to the free and democratic system of 8 justice in the United States and are based in the 9 Bill of Rights. There is, however, an unfortunate 10 and long-documented history in the United States of 11 attorneys discriminating against LGBTQ individ- 12 uals, or those perceived to be LGBTQ, in jury selec- 13 tion. Failure to bar peremptory challenges based on 14 the actual or perceived sexual orientation or gender 15 identity of an individual not only erodes a funda- 16 mental right, duty, and obligation of being a citizen 17 of the United States, but also unfairly creates a sec- 18 ond class of citizenship for LGBTQ victims, wit- 19 nesses, plaintiffs, and defendants. 20 (20) Numerous studies document the shortage 21 of qualified and available homes for the approxi- 22 mately 424,000 youth in the child welfare system 23 and the negative outcomes for the many youth who 24 live in group care as opposed to a loving home or 25 VerDate Sep 11 2014 17:22 Mar 12, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S393.IS S393 10 •S 393 IS who age out of care without a permanent family 1 placement. Although same-sex couples are 7 times 2 more likely to foster or adopt than their different- 3 sex counterparts, many child-placing agencies refuse 4 to serve same-sex couples and LGBTQ individuals. 5 This has resulted in a reduction of the pool of quali- 6 fied and available homes for youth in the child wel- 7 fare system who need placement on a temporary or 8 permanent basis. It also sends a negative message 9 about LGBTQ people to children and youth in the 10 child welfare system about who is, and who is not, 11 considered fit to be a parent. While the priority 12 should be on providing the supports necessary to 13 keep children with their families, when removal is re- 14 quired, barring discrimination in foster care and 15 adoption will increase the number of homes available 16 to foster children waiting for foster and adoptive 17 families. 18 (21) LGBTQ youth are overrepresented in the 19 foster care system by at least a factor of two and 20 report twice the rate of poor treatment while in care 21 compared to their non-LGBTQ counterparts. 22 LGBTQ youth in foster care have a higher average 23 number of placements, higher likelihood of living in 24 a group home, and higher rates of hospitalization for 25 VerDate Sep 11 2014 17:22 Mar 12, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S393.IS S393 11 •S 393 IS emotional reasons and of juvenile justice involvement 1 than their non-LGBTQ peers because of the high 2 level of bias and discrimination that they face and 3 the difficulty of finding affirming foster placements. 4 Further, due to their physical distance from friends 5 and family, traumatic experiences, and potentially 6 unstable living situations, all youth involved with 7 child welfare services are at risk for being targeted 8 by traffickers seeking to exploit children. Barring 9 discrimination in child welfare services will ensure 10 improved treatment and outcomes for LGBTQ foster 11 children. 12 (22) Courts consistently have found that the 13 government has a compelling interest in preventing 14 and remedying discrimination. For example, the Su- 15 preme Court of the United States found there to be 16 a compelling government interest in eliminating sex 17 discrimination in Board of Directors of Rotary 18 International v. Rotary Club of Duarte, 481 U.S. 19 537, 549 (1987). Because discrimination based on 20 sexual orientation or gender identity inherently is a 21 form of sex discrimination, as held in Bostock v. 22 Clayton County, 140 S. Ct. 1731 (2020), this Act 23 furthers the compelling government interest in pro- 24 viding redress for the serious harms to mental and 25 VerDate Sep 11 2014 17:22 Mar 12, 2021 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S393.IS S393 12 •S 393 IS physical health, financial security and wellbeing, 1 civic participation, freedom of movement and oppor- 2 tunity, personal dignity, and physical safety that re- 3 sult from discrimination. Consistent with the role 4 nondiscrimination laws play in protecting lives and 5 livelihoods, alleviating suffering, and improving indi- 6 vidual and public health, the Supreme Court of the 7 United States has long recognized, under the deci- 8 sion in Heart of Atlanta Motel, Inc. v. United 9 States, 379 U.S. 241 (1964), that these laws also 10 benefit society as a whole by ending the ‘‘disruptive 11 effect’’ discrimination has on travel and commerce, 12 and by creating a level field for all participants in 13 a given sector. 14 (23) As with all prohibitions on invidious dis- 15 crimination, this Act furthers the government’s com- 16 pelling interest in the least restrictive way because 17 only by forbidding discrimination is it possible to 18 avert or redress the harms described in this sub- 19 section. 20 (b) PURPOSE.—It is the purpose of this Act to ex- 21 pand as well as clarify, confirm and create greater consist- 22 ency in the protections and remedies against discrimina- 23 tion on the basis of all covered characteristics and to pro- 24 vide guidance and notice to individuals, organizations, cor- 25 VerDate Sep 11 2014 17:22 Mar 12, 2021 Jkt 019200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S393.IS S393 13 •S 393 IS porations, and agencies regarding their obligations under 1 the law. 2 SEC. 3. PUBLIC ACCOMMODATIONS. 3 (a) PROHIBITION ON DISCRIMINATION OR SEGREGA- 4 TION IN PUBLIC ACCOMMODATIONS.—Section 201 of the 5 Civil Rights Act of 1964 (42 U.S.C. 2000a) is amended— 6 (1) in subsection (a), by inserting ‘‘sex (includ- 7 ing sexual orientation and gender identity),’’ before 8 ‘‘or national origin’’; and 9 (2) in subsection (b)— 10 (A) in paragraph (3), by striking ‘‘sta- 11 dium’’ and all that follows and inserting ‘‘sta- 12 dium or other place of or establishment that 13 provides exhibition, entertainment, recreation, 14 exercise, amusement, public gathering, or public 15 display;’’; 16 (B) by redesignating paragraph (4) as 17 paragraph (6); and 18 (C) by inserting after paragraph (3) the 19 following: 20 ‘‘(4) any establishment that provides a good, 21 service, or program, including a store, shopping cen- 22 ter, online retailer or service provider, salon, bank, 23 gas station, food bank, service or care center, shel- 24 ter, travel agency, or funeral parlor, or establish- 25 VerDate Sep 11 2014 17:22 Mar 12, 2021 Jkt 019200 PO 00000 Frm 00013 Fmt 6652 Sfmt 6201 E:\BILLS\S393.IS S393 14 •S 393 IS ment that provides health care, accounting, or legal 1 services; 2 ‘‘(5) any train service, bus service, car service, 3 taxi service, airline service, station, depot, or other 4 place of or establishment that provides transpor- 5 tation service; and’’. 6 (b) PROHIBITION ON DISCRIMINATION OR SEGREGA- 7 TION UNDER LAW.—Section 202 of such Act (42 U.S.C. 8 2000a–1) is amended by inserting ‘‘sex (including sexual 9 orientation and gender identity),’’ before ‘‘or national ori- 10 gin’’. 11 (c) RULE OF CONSTRUCTION.—Title II of such Act 12 (42 U.S.C. 2000a et seq.) is amended by adding at the 13 end the following: 14 ‘‘SEC. 208. RULE OF CONSTRUCTION. 15 ‘‘A reference in this title to an establishment— 16 ‘‘(1) shall be construed to include an individual 17 whose operations affect commerce and who is a pro- 18 vider of a good, service, or program; and 19 ‘‘(2) shall not be construed to be limited to a 20 physical facility or place.’’. 21 SEC. 4. DESEGREGATION OF PUBLIC FACILITIES. 22 Section 301(a) of the Civil Rights Act of 1964 (42 23 U.S.C. 2000b(a)) is amended by inserting ‘‘sex (including 24 VerDate Sep 11 2014 17:22 Mar 12, 2021 Jkt 019200 PO 00000 Frm 00014 Fmt 6652 Sfmt 6201 E:\BILLS\S393.IS S393 15 •S 393 IS sexual orientation and gender identity),’’ before ‘‘or na- 1 tional origin’’. 2 SEC. 5. DESEGREGATION OF PUBLIC EDUCATION. 3 (a) DEFINITIONS.—Section 401(b) of the Civil Rights 4 Act of 1964 (42 U.S.C. 2000c(b)) is amended by inserting 5 ‘‘(including sexual orientation and gender identity),’’ be- 6 fore ‘‘or national origin’’. 7 (b) CIVIL ACTIONS BY THE ATTORNEY GENERAL.— 8 Section 407 of such Act (42 U.S.C. 2000c–6) is amended, 9 in subsection (a)(2), by inserting ‘‘(including sexual ori- 10 entation and gender identity),’’ before ‘‘or national ori- 11 gin’’. 12 (c) CLASSIFICATION AND ASSIGNMENT.—Section 410 13 of such Act (42 U.S.C. 2000c–9) is amended by inserting 14 ‘‘(including sexual orientation and gender identity),’’ be- 15 fore ‘‘or national origin’’. 16 SEC. 6. FEDERAL FUNDING. 17 Section 601 of the Civil Rights Act of 1964 (42 18 U.S.C. 2000d) is amended by inserting ‘‘sex (including 19 sexual orientation and gender identity),’’ before ‘‘or na- 20 tional origin,’’. 21 SEC. 7. EMPLOYMENT. 22 (a) RULES OF CONSTRUCTION.—Title VII of the 23 Civil Rights Act of 1964 is amended by inserting after 24 section 701 (42 U.S.C. 2000e) the following: 25 VerDate Sep 11 2014 17:22 Mar 12, 2021 Jkt 019200 PO 00000 Frm 00015 Fmt 6652 Sfmt 6201 E:\BILLS\S393.IS S393 16 •S 393 IS ‘‘SEC. 701A. RULES OF CONSTRUCTION. 1 ‘‘Section 1106 shall apply to this title except that for 2 purposes of that application, a reference in that section 3 to an ‘unlawful practice’ shall be considered to be a ref- 4 erence to an ‘unlawful employment practice’.’’. 5 (b) UNLAWFUL EMPLOYMENT PRACTICES.—Section 6 703 of the Civil Rights Act of 1964 (42 U.S.C. 2000e– 7 2) is amended— 8 (1) in the section header, by striking ‘‘SEX,’’ 9 and inserting ‘‘SEX (INCLUDING SEXUAL ORIENTA- 10 TION AND GENDER IDENTITY),’’; 11 (2) except in subsection (e), by striking ‘‘sex,’’ 12 each place it appears and inserting ‘‘sex (including 13 sexual orientation and gender identity),’’; 14 (3) in subsection (e)(1), by striking ‘‘enter- 15 prise,’’ and inserting ‘‘enterprise, if, in a situation in 16 which sex is a bona fide occupational qualification, 17 individuals are recognized as qualified in accordance 18 with their gender identity,’’; and 19 (4) in subsection (h), by striking ‘‘sex’’ the sec- 20 ond place it appears and inserting ‘‘sex (including 21 sexual orientation and gender identity),’’. 22 (c) OTHER UNLAWFUL EMPLOYMENT PRACTICES.— 23 Section 704(b) of the Civil Rights Act of 1964 (42 U.S.C. 24 2000e–3(b)) is amended— 25 VerDate Sep 11 2014 17:22 Mar 12, 2021 Jkt 019200 PO 00000 Frm 00016 Fmt 6652 Sfmt 6201 E:\BILLS\S393.IS S393 17 •S 393 IS (1) by striking ‘‘sex,’’ the first place it appears 1 and inserting ‘‘sex (including sexual orientation and 2 gender identity),’’; and 3 (2) by striking ‘‘employment.’’ and inserting 4 ‘‘employment, if, in a situation in which sex is a 5 bona fide occupational qualification, individuals are 6 recognized as qualified in accordance with their gen- 7 der identity.’’. 8 (d) CLAIMS.—Section 706(g)(2)(A) of the Civil 9 Rights Act of 1964 (2000e–5(g)(2)(A)) is amended by 10 striking ‘‘sex,’’ and inserting ‘‘sex (including sexual ori- 11 entation and gender identity),’’. 12 (e) EMPLOYMENT BY FEDERAL GOVERNMENT.—Sec- 13 tion 717 of the Civil Rights Act of 1964 (42 U.S.C. 14 2000e–16) is amended— 15 (1) in subsection (a), by striking ‘‘sex,’’ and in- 16 serting ‘‘sex (including sexual orientation and gender 17 identity),’’; and 18 (2) in subsection (c), by striking ‘‘sex’’ and in- 19 serting ‘‘sex (including sexual orientation and gender 20 identity),’’. 21 (f) GOVERNMENT EMPLOYEE RIGHTS ACT OF 22 1991.—The Government Employee Rights Act of 1991 23 (42 U.S.C. 2000e–16a et seq.) is amended— 24 VerDate Sep 11 2014 17:22 Mar 12, 2021 Jkt 019200 PO 00000 Frm 00017 Fmt 6652 Sfmt 6201 E:\BILLS\S393.IS S393 18 •S 393 IS (1) in section 301(b), by striking ‘‘sex,’’ and in- 1 serting ‘‘sex (including sexual orientation and gender 2 identity),’’; 3 (2) in section 302(a)(1), by striking ‘‘sex,’’ and 4 inserting ‘‘sex (including sexual orientation and gen- 5 der identity),’’; and 6 (3) by adding at the end the following: 7 ‘‘SEC. 305. RULES OF CONSTRUCTION AND CLAIMS. 8 ‘‘Sections 1101(b), 1106, and 1107 of the Civil 9 Rights Act of 1964 shall apply to this title except that 10 for purposes of that application, a reference in that section 11 1106 to ‘race, color, religion, sex (including sexual orienta- 12 tion and gender identity), or national origin’ shall be con- 13 sidered to be a reference to ‘race, color, religion, sex, sex- 14 ual orientation, gender identity, national origin, age, or 15 disability’.’’. 16 (g) CONGRESSIONAL ACCOUNTABILITY ACT OF 17 1995.—The Congressional Accountability Act of 1995 (2 18 U.S.C. 1301 et seq.) is amended— 19 (1) in section 201(a)(1) (2 U.S.C. 1311(a)(1)) 20 by inserting ‘‘(including sexual orientation and gen- 21 der identity),’’ before ‘‘or national origin,’’; and 22 (2) by adding at the end of title II (42 U.S.C. 23 1311 et seq.) the following: 24 VerDate Sep 11 2014 17:22 Mar 12, 2021 Jkt 019200 PO 00000 Frm 00018 Fmt 6652 Sfmt 6201 E:\BILLS\S393.IS S393 19 •S 393 IS ‘‘SEC. 209. RULES OF CONSTRUCTION AND CLAIMS. 1 ‘‘Sections 1101(b), 1106, and 1107 of the Civil 2 Rights Act of 1964 shall apply to section 201 (and reme- 3 dial provisions of this Act related to section 201) except 4 that for purposes of that application, a reference in that 5 section 1106 to ‘race, color, religion, sex (including sexual 6 orientation and gender identity), or national origin’ shall 7 be considered to be a reference to ‘race, color, religion, 8 sex (including sexual orientation and gender identity), na- 9 tional origin, age, or disability’.’’. 10 (h) CIVIL SERVICE REFORM ACT OF 1978.—Chapter 11 23 of title 5, United States Code, is amended— 12 (1) in section 2301(b)(2), by striking ‘‘sex,’’ 13 and inserting ‘‘sex (including sexual orientation and 14 gender identity),’’; 15 (2) in section 2302— 16 (A) in subsection (b)(1)(A), by inserting 17 ‘‘(including sexual orientation and gender iden- 18 tity),’’ before ‘‘or national origin,’’; and 19 (B) in subsection (d)(1), by inserting ‘‘(in- 20 cluding sexual orientation and gender iden- 21 tity),’’ before ‘‘or national origin;’’; and 22 (3) by adding at the end the following: 23 ‘‘SEC. 2307. RULES OF CONSTRUCTION AND CLAIMS. 24 ‘‘Sections 1101(b), 1106, and 1107 of the Civil 25 Rights Act of 1964 shall apply to this chapter (and reme- 26 VerDate Sep 11 2014 17:22 Mar 12, 2021 Jkt 019200 PO 00000 Frm 00019 Fmt 6652 Sfmt 6201 E:\BILLS\S393.IS S393 20 •S 393 IS dial provisions of this title related to this chapter) except 1 that for purposes of that application, a reference in that 2 section 1106 to ‘race, color, religion, sex (including sexual 3 orientation and gender identity), or national origin’ shall 4 be considered to be a reference to ‘race, color, religion, 5 sex (including sexual orientation and gender identity), na- 6 tional origin, age, a handicapping condition, marital sta- 7 tus, or political affiliation’.’’. 8 SEC. 8. INTERVENTION. 9 Section 902 of the Civil Rights Act of 1964 (42 10 U.S.C. 2000h–2) is amended by inserting ‘‘(including sex- 11 ual orientation and gender identity),’’ before ‘‘or national 12 origin,’’. 13 SEC. 9. MISCELLANEOUS. 14 Title XI of the Civil Rights Act of 1964 is amended— 15 (1) by redesignating sections 1101 through 16 1104 (42 U.S.C. 2000h et seq.) and sections 1105 17 and 1106 (42 U.S.C. 2000h–5, 2000h–6) as sections 18 1102 through 1105 and sections 1108 and 1109, re- 19 spectively; 20 (2) by inserting after the title heading the fol- 21 lowing: 22 VerDate Sep 11 2014 17:22 Mar 12, 2021 Jkt 019200 PO 00000 Frm 00020 Fmt 6652 Sfmt 6201 E:\BILLS\S393.IS S393 21 •S 393 IS ‘‘SEC. 1101. DEFINITIONS AND RULES. 1 ‘‘(a) DEFINITIONS.—In titles II, III, IV, VI, VII, and 2 IX (referred to individually in sections 1106 and 1107 as 3 a ‘covered title’): 4 ‘‘(1) RACE; COLOR; RELIGION; SEX; SEXUAL 5 ORIENTATION; GENDER IDENTITY; NATIONAL ORI- 6 GIN.—The term ‘race’, ‘color’, ‘religion’, ‘sex’ (in- 7 cluding ‘sexual orientation’ and ‘gender identity’), or 8 ‘national origin’, used with respect to an individual, 9 includes— 10 ‘‘(A) the race, color, religion, sex (includ- 11 ing sexual orientation and gender identity), or 12 national origin, respectively, of another person 13 with whom the individual is associated or has 14 been associated; and 15 ‘‘(B) a perception or belief, even if inac- 16 curate, concerning the race, color, religion, sex 17 (including sexual orientation and gender iden- 18 tity), or national origin, respectively, of the in- 19 dividual. 20 ‘‘(2) GENDER IDENTITY.—The term ‘gender 21 identity’ means the gender-related identity, appear- 22 ance, mannerisms, or other gender-related character- 23 istics of an individual, regardless of the individual’s 24 designated sex at birth. 25 VerDate Sep 11 2014 17:22 Mar 12, 2021 Jkt 019200 PO 00000 Frm 00021 Fmt 6652 Sfmt 6201 E:\BILLS\S393.IS S393 22 •S 393 IS ‘‘(3) INCLUDING.—The term ‘including’ means 1 including, but not limited to, consistent with the 2 term’s standard meaning in Federal law. 3 ‘‘(4) SEX.—The term ‘sex’ includes— 4 ‘‘(A) a sex stereotype; 5 ‘‘(B) pregnancy, childbirth, or a related 6 medical condition; 7 ‘‘(C) sexual orientation or gender identity; 8 and 9 ‘‘(D) sex characteristics, including intersex 10 traits. 11 ‘‘(5) SEXUAL ORIENTATION.—The term ‘sexual 12 orientation’ means homosexuality, heterosexuality, or 13 bisexuality. 14 ‘‘(b) RULES.—In a covered title referred to in sub- 15 section (a)— 16 ‘‘(1) (with respect to sex) pregnancy, childbirth, 17 or a related medical condition shall not receive less 18 favorable treatment than other physical conditions; 19 and 20 ‘‘(2) (with respect to gender identity) an indi- 21 vidual shall not be denied access to a shared facility, 22 including a restroom, a locker room, and a dressing 23 room, that is in accordance with the individual’s 24 gender identity.’’; and 25 VerDate Sep 11 2014 17:22 Mar 12, 2021 Jkt 019200 PO 00000 Frm 00022 Fmt 6652 Sfmt 6201 E:\BILLS\S393.IS S393 23 •S 393 IS (3) by inserting after section 1105 the fol- 1 lowing: 2 ‘‘SEC. 1106. RULES OF CONSTRUCTION. 3 ‘‘(a) SEX.—Nothing in section 1101 or the provisions 4 of a covered title incorporating a term defined or a rule 5 specified in that section shall be construed— 6 ‘‘(1) to limit the protection against an unlawful 7 practice on the basis of pregnancy, childbirth, or a 8 related medical condition provided by section 701(k); 9 or 10 ‘‘(2) to limit the protection against an unlawful 11 practice on the basis of sex available under any pro- 12 vision of Federal law other than that covered title, 13 prohibiting a practice on the basis of sex. 14 ‘‘(b) CLAIMS AND REMEDIES NOT PRECLUDED.— 15 Nothing in section 1101 or a covered title shall be con- 16 strued to limit the claims or remedies available to any indi- 17 vidual for an unlawful practice on the basis of race, color, 18 religion, sex (including sexual orientation and gender iden- 19 tity), or national origin including claims brought pursuant 20 to section 1979 or 1980 of the Revised Statutes (42 21 U.S.C. 1983, 1985) or any other law, including a Federal 22 law amended by the Equality Act, regulation, or policy. 23 ‘‘(c) NO NEGATIVE INFERENCE.—Nothing in section 24 1101 or a covered title shall be construed to support any 25 VerDate Sep 11 2014 17:22 Mar 12, 2021 Jkt 019200 PO 00000 Frm 00023 Fmt 6652 Sfmt 6201 E:\BILLS\S393.IS S393 24 •S 393 IS inference that any Federal law prohibiting a practice on 1 the basis of sex does not prohibit discrimination on the 2 basis of pregnancy, childbirth, or a related medical condi- 3 tion, sexual orientation, gender identity, or a sex stereo- 4 type. 5 ‘‘SEC. 1107. CLAIMS. 6 ‘‘The Religious Freedom Restoration Act of 1993 (42 7 U.S.C. 2000bb et seq.) shall not provide a claim con- 8 cerning, or a defense to a claim under, a covered title, 9 or provide a basis for challenging the application or en- 10 forcement of a covered title.’’. 11 SEC. 10. HOUSING. 12 (a) FAIR HOUSING ACT.—The Fair Housing Act (42 13 U.S.C. 3601 et seq.) is amended— 14 (1) in section 802 (42 U.S.C. 3602), by adding 15 at the end the following: 16 ‘‘(p) ‘Gender identity’, ‘sex’, and ‘sexual orientation’ 17 have the meanings given those terms in section 1101(a) 18 of the Civil Rights Act of 1964. 19 ‘‘(q) ‘Race’, ‘color’, ‘religion’, ‘sex’ (including ‘sexual 20 orientation’ and ‘gender identity’), ‘handicap’, ‘familial 21 status’, or ‘national origin’, used with respect to an indi- 22 vidual, includes— 23 ‘‘(1) the race, color, religion, sex (including sex- 24 ual orientation and gender identity), handicap, fa- 25 VerDate Sep 11 2014 17:22 Mar 12, 2021 Jkt 019200 PO 00000 Frm 00024 Fmt 6652 Sfmt 6201 E:\BILLS\S393.IS S393 25 •S 393 IS milial status, or national origin, respectively, of an- 1 other person with whom the individual is associated 2 or has been associated; and 3 ‘‘(2) a perception or belief, even if inaccurate, 4 concerning the race, color, religion, sex (including 5 sexual orientation and gender identity), handicap, 6 familial status, or national origin, respectively, of the 7 individual.’’; 8 (2) in section 804, by inserting ‘‘(including sex- 9 ual orientation and gender identity),’’ after ‘‘sex,’’ 10 each place that term appears; 11 (3) in section 805, by inserting ‘‘(including sex- 12 ual orientation and gender identity),’’ after ‘‘sex,’’ 13 each place that term appears; 14 (4) in section 806, by inserting ‘‘(including sex- 15 ual orientation and gender identity),’’ after ‘‘sex,’’; 16 (5) in section 808(e)(6), by inserting ‘‘(includ- 17 ing sexual orientation and gender identity),’’ after 18 ‘‘sex,’’; and 19 (6) by adding at the end the following: 20 ‘‘SEC. 821. RULES OF CONSTRUCTION. 21 ‘‘Sections 1101(b) and 1106 of the Civil Rights Act 22 of 1964 shall apply to this title and section 901, except 23 that for purposes of that application, a reference in that 24 VerDate Sep 11 2014 17:22 Mar 12, 2021 Jkt 019200 PO 00000 Frm 00025 Fmt 6652 Sfmt 6201 E:\BILLS\S393.IS S393 26 •S 393 IS section 1101(b) or 1106 to a ‘covered title’ shall be consid- 1 ered a reference to ‘this title and section 901’. 2 ‘‘SEC. 822. CLAIMS. 3 ‘‘Section 1107 of the Civil Rights Act of 1964 shall 4 apply to this title and section 901, except that for pur- 5 poses of that application, a reference in that section 1107 6 to a ‘covered title’ shall be considered a reference to ‘this 7 title and section 901’.’’. 8 (b) PREVENTION OF INTIMIDATION IN FAIR HOUS- 9 ING CASES.—Section 901 of the Civil Rights Act of 1968 10 (42 U.S.C. 3631) is amended by inserting ‘‘(including sex- 11 ual orientation (as such term is defined in section 802 of 12 this Act) and gender identity (as such term is defined in 13 section 802 of this Act)),’’ after ‘‘sex,’’ each place that 14 term appears. 15 SEC. 11. EQUAL CREDIT OPPORTUNITY. 16 (a) PROHIBITED DISCRIMINATION.—Section 17 701(a)(1) of the Equal Credit Opportunity Act (15 U.S.C. 18 1691(a)(1)) is amended by inserting ‘‘(including sexual 19 orientation and gender identity),’’ after ‘‘sex’’. 20 (b) DEFINITIONS.—Section 702 of the Equal Credit 21 Opportunity Act (15 U.S.C. 1691a) is amended— 22 (1) by redesignating subsections (f) and (g) as 23 subsections (h) and (i), respectively; 24 VerDate Sep 11 2014 17:22 Mar 12, 2021 Jkt 019200 PO 00000 Frm 00026 Fmt 6652 Sfmt 6201 E:\BILLS\S393.IS S393 27 •S 393 IS (2) by inserting after subsection (e) the fol- 1 lowing: 2 ‘‘(f) The terms ‘gender identity’, ‘sex’, and ‘sexual 3 orientation’ have the meanings given those terms in sec- 4 tion 1101(a) of the Civil Rights Act of 1964. 5 ‘‘(g) The term ‘race’, ‘color’, ‘religion’, ‘national ori- 6 gin’, ‘sex’ (including ‘sexual orientation’ and ‘gender iden- 7 tity’), ‘marital status’, or ‘age’, used with respect to an 8 individual, includes— 9 ‘‘(1) the race, color, religion, national origin, 10 sex (including sexual orientation and gender iden- 11 tity), marital status, or age, respectively, of another 12 person with whom the individual is associated or has 13 been associated; and 14 ‘‘(2) a perception or belief, even if inaccurate, 15 concerning the race, color, religion, national origin, 16 sex (including sexual orientation and gender iden- 17 tity), marital status, or age, respectively, of the indi- 18 vidual.’’; and 19 (3) by adding at the end the following: 20 ‘‘(j) Sections 1101(b) and 1106 of the Civil Rights 21 Act of 1964 shall apply to this title, except that for pur- 22 poses of that application— 23 VerDate Sep 11 2014 17:22 Mar 12, 2021 Jkt 019200 PO 00000 Frm 00027 Fmt 6652 Sfmt 6201 E:\BILLS\S393.IS S393 28 •S 393 IS ‘‘(1) a reference in those sections to a ‘covered 1 title’ shall be considered a reference to ‘this title’; 2 and 3 ‘‘(2) paragraph (1) of such section 1101(b) 4 shall apply with respect to all aspects of a credit 5 transaction.’’. 6 (c) RELATION TO STATE LAWS.—Section 705(a) of 7 the Equal Credit Opportunity Act (15 U.S.C. 1691d(a)) 8 is amended by inserting ‘‘(including sexual orientation and 9 gender identity),’’ after ‘‘sex’’. 10 (d) CIVIL LIABILITY.—Section 706 of the Equal 11 Credit Opportunity Act (15 U.S.C. 1691e) is amended by 12 adding at the end the following: 13 ‘‘(l) Section 1107 of the Civil Rights Act of 1964 14 shall apply to this title, except that for purposes of that 15 application, a reference in that section to a ‘covered title’ 16 shall be considered a reference to ‘this title’.’’. 17 SEC. 12. JURIES. 18 (a) IN GENERAL.—Chapter 121 of title 28, United 19 States Code, is amended— 20 (1) in section 1862, by inserting ‘‘(including 21 sexual orientation and gender identity),’’ after 22 ‘‘sex,’’; 23 VerDate Sep 11 2014 17:22 Mar 12, 2021 Jkt 019200 PO 00000 Frm 00028 Fmt 6652 Sfmt 6201 E:\BILLS\S393.IS S393 29 •S 393 IS (2) in section 1867(e), in the second sentence, 1 by inserting ‘‘(including sexual orientation and gen- 2 der identity),’’ after ‘‘sex,’’; 3 (3) in section 1869— 4 (A) in subsection (j), by striking ‘‘and’’ at 5 the end; 6 (B) in subsection (k), by striking the pe- 7 riod at the end and inserting a semicolon; and 8 (C) by adding at the end the following: 9 ‘‘(l) ‘gender identity’, ‘sex’, and ‘sexual orientation’ 10 have the meanings given such terms under section 1101(a) 11 of the Civil Rights Act of 1964; and 12 ‘‘(m) ‘race’, ‘color’, ‘religion’, ‘sex’ (including ‘sexual 13 orientation’ and ‘gender identity’), ‘economic status’, or 14 ‘national origin’, used with respect to an individual, in- 15 cludes— 16 ‘‘(1) the race, color, religion, sex (including sex- 17 ual orientation and gender identity), economic sta- 18 tus, or national origin, respectively, of another per- 19 son with whom the individual is associated or has 20 been associated; and 21 ‘‘(2) a perception or belief, even if inaccurate, 22 concerning the race, color, religion, sex (including 23 sexual orientation and gender identity), economic 24 VerDate Sep 11 2014 17:22 Mar 12, 2021 Jkt 019200 PO 00000 Frm 00029 Fmt 6652 Sfmt 6201 E:\BILLS\S393.IS S393 30 •S 393 IS status, or national origin, respectively, of the indi- 1 vidual.’’; and 2 (4) by adding at the end the following: 3 ‘‘§ 1879. Rules of construction and claims 4 ‘‘Sections 1101(b), 1106, and 1107 of the Civil 5 Rights Act of 1964 shall apply to this chapter, except that 6 for purposes of that application, a reference in those sec- 7 tions to a ‘covered title’ shall be considered a reference 8 to ‘this chapter’.’’. 9 (b) TECHNICAL AND CONFORMING AMENDMENT.— 10 The table of sections for chapter 121 of title 28, United 11 States Code, is amended by adding at the end the fol- 12 lowing: 13 ‘‘1879. Rules of construction and claims.’’. Æ VerDate Sep 11 2014 17:22 Mar 12, 2021 Jkt 019200 PO 00000 Frm 00030 Fmt 6652 Sfmt 6301 E:\BILLS\S393.IS S393