With President Biden’s first 100 days in office coming to a close, the Equality Act doesn’t appear even close to passage after his campaign promise to sign the legislation into law within that timeframe, although defenders say talks are ongoing and point to his executive actions in favor of LGBTQ rights.
Sen. Tammy Baldwin (D-Wis.), the first out lesbian elected to the U.S. Senate and a co-sponsor of the Equality Act, told the Washington Blade on Monday the Equality Act wasn’t completely dead in the water, alluding to imminent talks with fellow senators on the comprehensive LGBTQ legislation.
“Conversations continue to try to get to 60 votes,” Baldwin said. “I am hoping to personally be involved in several of those before the recess next week, but they’re still tentative.”
Asked what the reception has been to lawmakers amid talks on the Equality Act, Baldwin referenced items of traction, but wouldn’t get into details.
“I think there’s a commitment among a bipartisan group of getting to ‘yes,’” Baldwin said. “It’s just the, you know, law-making is like sausage-making.”
When the Blade pointed out Biden had said he’d sign the legislation into law within his first 100 days and asked whether the White House was being helpful, Baldwin said she had no reason to think otherwise.
“I’ve been dealing directly with my Senate colleagues, but I have no reason to believe they’re not being helpful,” Baldwin said.
Senators considered on the fence about the Equality Act wanted nothing to do with inquiries about where things stand with them on the legislation when the Blade approached them.
Sen. Joe Manchin (D-W.Va.), who remains the lone Democrat in the Senate uncommitted on the Equality Act amid efforts of trying to pry him out by winning over the junior Republican senator from his state, professed to be unaware of the legislation when asked by the Blade if anyone has reached out to him.
Manchin, who previously signaled he couldn’t support the Equality Act because of concerns over public schools having to implement the transgender protection, told the Blade he “hasn’t seen” the bill.
Sen. Susan Collins (R-Maine), who declined to co-sponsor the legislation this Congress after having previously supported it, pushed back when the Blade made similar inquiries about whether she’s involved in talks on the bill.
“I’ve talked to several people about it; I’m not going to give you a list of names,” said Collins just before a nearby aide closed down further inquiries, citing concerns about the Maine senator missing an imminent floor vote.
Although the U.S. Supreme Court ruling last year in Bostock v. Clayton County determined anti-LGBTQ discrimination is illegal under existing law in the workplace, which has application to any law banning discrimination, the Equality Act would take things further to prohibit anti-LGBTQ discrimination in public accommodations and federally funded programs.
Additionally, it would expand the Civil Rights Act of 1964 to prohibit using the 1993 Religious Freedom Restoration Act as a defense in cases of discrimination, including protections on the basis of sex in public accommodations and federal programs and expand the definition of public accommodations to include retail stores, banks, transportation services and health care services for all protected categories, including race and national origin.
Biden, whose 100th day in office as president was set for Thursday, promised the LGBTQ community in multiple forums on the campaign trail in 2020 he’d sign the Equality Act within his first 100 days in office and included his commitment to that timeframe on the LGBTQ page of his campaign website.
Even in October 2020, when the coronavirus pandemic continued to rage in the United States and it was clear that would be a priority for him upon taking office, Biden said in an interview with the Philadelphia Gay News the Equality Act would be a top priority for him within his first 100 days.
“I will make enactment of the Equality Act a top legislative priority during my first 100 days — a priority that Donald Trump opposes,” Biden said.
But the Equality Act faces significant hurdles in the path toward passage in a Senate equally divided 50-50 along party lines where 60 votes would be needed to end a filibuster. Anti-transgender groups have pounced on the issue of transgender kids in sports, which has been the focus of legislation advancing through state legislatures and may be a sticking point in talks on the bill. Although the U.S. House passed the Equality Act largely along party lines in March, the Senate Judiciary Committee hasn’t yet voted to advance the legislation, let alone hold a floor vote on the bill.
Sen. Jeff Merkley (D-Ore.) signaled through a spokesperson work continues behind the scenes on the Equality Act and important achievements have been made, including record business support announced this week.
“The Equality Act has made historic progress within the first 100 days of the Biden administration,” said Martina McLennan, a Merkley spokesperson. “In addition to passing the House with a bipartisan vote, this legislation has more Senate cosponsors than ever before, more than 400 major businesses have called for its passage, and, after the Judiciary Committee’s first-ever Senate hearing in March, the Equality Act is poised for further action soon. Sen. Merkley is continuing to have productive conversations with Senate Republicans and remains committed to achieving a bipartisan vote in the Senate and seeing this landmark legislation signed into law.”
The White House continues to insist nothing has changed in terms of Biden making the Equality Act a priority. White House Press Secretary Jen Psaki in February twice told the Washington Blade Biden “stands by” his 100-day commitment, once in February and again on the 83rd day of the administration, blaming the Senate for inaction.
“And as you know, in order to sign legislation, it needs to come to his desk,” Psaki said. “And while he has certainly been a vocal advocate in his support for the Equality Act, obviously, as you know and noted, it passed the House; it needs to work its way through the Senate. It requires the Senate passing it in order for him to sign it.”
Asked what Biden is doing to advance the Equality Act, Psaki cited a Statement of Administration Policy in favor of the legislation and vaguely mentioned talks Biden is having.
“He has talked about his view that this is legislation that should pass,” Psaki said. “And he has a range of conversations about a range of topics, but also so does our legislative team who work to move forward his agenda every single day.”
However, exactly what the White House and Biden are doing, if anything, behind the scenes to advance the Equality Act remains unclear. One Democratic insider, who spoke on condition of anonymity for greater candor, said he’s “disappointed that they haven’t allocated much energy to it compared to other items on the agenda,” later adding “hopefully they’ll plug along.”
A White House official, asked by the Blade for this article if Biden is disappointed he won’t be able to sign the Equality Act within the 100-day timeframe he envisioned, reiterated the president’s support for the legislation.
“President Biden believes the Senate needs to act now to pass the Equality Act, and will continue to prioritize this legislation so that no one can be discriminated against on the basis of sex, including gender identity and sexual orientation,” the White House official said.
To be sure, Biden has acted to advance LGBTQ rights through executive action during his first 100 days in office, signing an executive order on his first day in office ordering federal agencies to fully implement the Bostock ruling across the board with regard to all laws against sex discrimination.
Biden wasn’t done: Days later he signed an executive order reversing former President Trump’s transgender military ban and a memorandum directing the State Department to make LGBTQ human rights an international foreign policy priority.
Based on Biden’s Bostock order, federal agencies have signaled that they would take up cases of anti-LGBTQ discrimination as sex discrimination, including the Consumer Financial Protection Bureau and the Department of Housing & Urban Development. The Department of Education also issued a memo signaling anti-LGBTQ discrimination in school programs, including sports, is illegal under Title IX of the Education Amendments of 1972.
But the cornerstone of Biden’s campaign promise to the LGBTQ community was signing the Equality Act to enact a change in law for LGBTQ protections. Although Biden signaled he’d enforce the law consistent with the Bostock decision, signing the Equality Act into law within 100 days was what he repeatedly promised in campaign forums.
Moreover, executive actions have limits. For starters, a subsequent administration hostile to LGBTQ rights could reverse them (even though those changes would likely be challenged in court). Most notably, because no law bars sex discrimination in public accommodations, a change in law is necessary to prohibit to anti-LGBTQ discrimination in that area. Under current federal law, businesses can refuse service to customers for being LGBTQ or throw them out for holding hands with a same-sex partner without fear of legal reprisal.
Harkening back to the 2020 presidential campaign, the inability of Biden to meet his campaign promise to sign the Equality Act into law within 100 days makes prophetic concerns some Biden campaign supporters quietly expressed about the campaign or transition team not having a dedicated policy staffer on LGBTQ issues, which could have gotten the ball rolling to anticipate controversial issues with the legislation and coordinate among principals.
LGBTQ advocacy groups working to advance the Equality Act have largely kept quiet on the strategy talks behind the scenes, although they expressed solidarity with Biden despite him not being able to meet his 100-day timeframe for the legislation.
Mara Keisling, executive director of the National Center for Transgender Equality, said via email she remains confident Biden will sign the Equality Act into law based on his actions in his first 100 days.
“NCTE had prioritized passing the Equality Act in this Congress,” Keisling said. “We are confident that President Biden will sign the bill when we can get it through the Senate whether that’s on Day 100 or Day 1,000. President Biden has been off to a quick start on trans policy with his early Bostock Executive Order, ending the trans military ban, and so far appointing the first two trans people in history to Senate confirmable positions. We are confident of more great work during these four years.”
Alphonso David. president of the Human Rights Campaign, listed the executive actions Biden has taken on behalf of the LGBTQ community since he took office when asked whether the impasse on the Equality Act is a disappointment.
“We are incredibly proud of the work the Biden Administration has done to protect and advance the rights of LGBTQ people here in the United States and across the world during his first 100 days in office. From issuing an executive order to implementing the Bostock decision across federal laws to reversing the ban on transgender service members, to an historic commitment to diversity in hiring — including appointing the first openly LGBTQ Cabinet member — the Biden Administration has made it clear that they celebrate and will fight for LGBTQ people at every level.”
David added much of the executive actions Biden has implemented were included in the organization’s Blueprint for Positive Change, which the LGBTQ group gave Biden officials during the transition period.
“Many of these recommendations have been met, and there have been significant actions taken on many more,” David added. “We are pleased with the progress that has been made in such a short amount of time, and we look forward to continuing our work with President Biden and his administration — as well as members of Congress who want to join millions of Americans in the fight for equality for all — to advance LGBTQ rights, particularly as the rights of LGBTQ people remain under attack in several states.”
CORRECTION: An initial version of the article stated the Human Rights Campaign didn’t respond by the Blade deadline. The Blade regrets the error.
