The U.S. House of Representatives just passed a landmark bill that aims to amend several federal laws to prohibit discrimination on the bases of sexual orientation and gender identity. The Equality Act, passed on February 25 by a vote of 224-206, previously passed the House in 2018 only to stall in the Senate. If passed by the Senate this time around, the law would go further than simply codifying the recent Supreme Court decision holding that “sex” includes a person’s sexual orientation and gender identity for purposes of Title VII. It would also add protections against discrimination and segregation on the bases of sex, sexual orientation, and gender identity for purposes of accommodations and education. What do businesses need to know about this development?

Isn’t This Already the Law?

The crux of this congressional proposal might seem familiar to some. That’s because the Supreme Court recently found that Title VII’s prohibition of sex discrimination in the workplace also prohibits discrimination on the bases of sexual orientation and gender identity in June 2020. The Equality Act would codify this holding by explicitly adding “sexual orientation” and “gender identity” to the definition of “sex” in Title VII itself. It would also amend Title VII to clarify that, when sex is a bona fide occupational qualification, individuals are recognized as qualified in accordance with their gender identity.

The Equality Act’s Reach Beyond Employment

Unlike the Court’s ruling, however, this bill would impact more than just employment.  In addition to Title VII, the Equality Act would also expand “sex” to include sexual orientation and gender identity in the Civil Rights Act’s prohibitions against sex discrimination under Title II (public accommodations); Title III (public facilities); Title IV (public education); Title VI (federal assistance); and Title IX (DOJ Intervention). It would further amend the Civil Service Reform Act, the Fair Housing Act, the equal Credit Opportunity Act, and federal law related to jury selection.  It would similarly allow the Department of Justice to intervene in equal protection actions related to sexual orientation or gender identity.

Moreover, the Equality Act would add sex (including sexual orientation and gender identity) as a protected category in various prohibitions against discrimination and segregation under Title II (public accommodations); Title III (public facilities); and Title VI (federal assistance).

The current version of the bill would also prevent use of the Religious Freedom Restoration Act (RFRA) (which you may remember from the Supreme Court’s 2014 Hobby Lobby case) as a defense against enforcement of the Civil Rights Act. This would likely not impact the ministerial exception to the law, however, which is limited to religious employers. The Court upheld a broad standard for the ministerial exception just last summer. 

What Happens Next?

The Equality Act will move to the Senate next. While the Senate Majority leader is a co-sponsor of the bill, it will require 60 votes in support to be filibuster-proof. It is unclear if it will pass that hurdle or whether the Democratic majority would be willing to dismantle the filibuster over this piece of legislation. President Biden has already issued a statement in support of the bill, so he would certainly sign the Equality Act into law if it passes the Senate.

 

Kayla Gore wants transgender people of color in the South to have a fighting chance.

In 2016, she and her friend Ellyahnna C. Wattshall were working at a local community center in Memphis, Tennessee, when they noticed emergency shelters were discriminating against trans people like them.

“It was just me and Ellyahnna at the (LGBTQ) community center one day,” Gore told CNN. “I was working there … and I was having a lot of frustration with the organizations that provided emergency shelter in Memphis.”

Gore said she was hearing reports from local trans people that shelters were asking invasive questions about their genitalia.

“(There was) no concern for the actual people who were in an emergency situation who needed housing,” Gore said.

That year, she and Wattshall created a new option: My Sistah’s House, a grassroots organization that provides emergency housing and resources to LGBTQ people, and especially trans people of color.

“The desire was for My Sistah’s House to be a place of refuge,” Gore said.

From an open bed to an organization

The seeds of the organization were planted when Gore began housing trans people in her own home.

After a while, though, she and Wattshall bought a dedicated house for trans people seeking emergency shelter.

“They needed somewhere to be,” Gore said. “And it blew up to what we are now — a fiscally sponsored organization that provides housing, sexual health resources and a couple of different advocacy platforms that we engage our community to be a part of.”

My Sistah’s House, along with providing housing, hosts clinics to educate trans people on the legal process of name changes, provides survival kits to local sex workers and offers resume coaching.

The services are “delivered by and for gender non-conforming people of color,” their GoFundMe says.

Covid-19 sparked yet another initiative

During the peak of the pandemic, Gore and her team noticed that more people were facing housing insecurity than ever before.

Finding a wealth of options for families but close to none for trans people, My Sistah’s House launched a project: It would aim to build 20 tiny homes for trans people seeking transitional housing.

GoFundMe was launched and went viral soon after. The campaign raised $300,000 for the project — but Gore said this is only enough to build five homes.

Three have been built so far, and in March the first tiny home resident will be ready to move in.

Trans housing insecurity persists

Gore said that since the tiny home project went viral, more people have come to My Sistah’s House seeking services — and some are traveling long distances.

“I keep telling people it’s a double-edged sword,” she said. “It feels good that we can provide it. But people are having to travel 700-800 miles. It’s an eye-opening experience of the scarcity of housing resources for trans people in the South.”

Gore said the organization is able to secure emergency housing for out-of-state travelers through other programs.

But the challenges of being trans and houseless in the South persist.

Trans people facing financial and housing insecurity, Gore said, can pursue alternative employment like survival sex work, which can sometimes endanger them.

“(Housing insecurity) puts us in a situation where we’re doing things that we normally would not do,” Gore said. “It puts us in fight or flight mode all the time.”

At an office job, someone could take medical leave. But trans people are often left without anything to fall back on.

The aim of My Sistah’s House, she said, is to be the place in which they can fall back.

“Home means safety and security,” Gore said. “It’s a human right.”

Kings Junior High School student Nicki Chambers began her gender transition years ago, in first grade. Like many other students who are transgender, the idea of spending the majority of her day in the classroom with other kids could seem intimidating at times.

"Sometimes the less social, the better for me," she said. "Some days I'm just not feeling social."

According to the Centers for Disease Control and Prevention, students in the LGBTQ community are at higher risk of being bullied by their classmates. For students like Chambers, the move to remote learning during the ongoing coronavirus pandemic has provided an opportunity, said Nicki's parent, Kim Chambers.

Jaclyn Keller is a senior at Summit Academy in Middletown. She could relate to Nicki Chamber's anxiety over the social pressures of in-person schooling.

"People were asking me if I was gay and taking my things," said Keller, who began her transition when she was 13. "Later on, they started getting better at respecting me more."

"As she's becoming a teenager, experimenting with how she wants to look, a lot of things regarding transitioning are a lot easier to do at home," they said. "If something goes wrong with something that she's experimenting, it's not a big deal. She can keep her camera off for the day, and nobody will ever know the difference."

When asked if she has experienced any bullying since switching to remote learning, Keller said, "Not at all."

Kim Chambers' younger daughter, Briella, is also transgender, but for her, the remote learning experience has proven more a challenge than an opportunity.

"(Briella) really needs the social interaction to actually be in person, and it's been a struggle," Kim Chambers said. "Nicki is a lot more introverted, and Briella is a lot more extroverted."

Beyond general concerns over isolation, transgender students can face unique struggles when a pandemic demands social distancing and limited contact with friends outside one's household, said Dr. Elise Pine, a pediatrician who specializes in trans-youth issues.

"They're home and isolated and can't meet with friends, and it's been very difficult in terms of depression and anxiety and struggling," Pine said.

Pine's advice for anyone struggling with such isolation right now: Find someone to talk to. Parents of a child struggling with gender issues should make sure they have an outlet where they feel safe.

If you or someone you know is struggling with gender identity or a mental health crisis, help is available. The Trevor Project specializes in providing support for young people who are transgender and can be reached by phone 24/7 at 1-866-488-7386. Call 1-800-273-8255 any time to reach the National Suicide Prevention Lifeline. The Crisis Text Line is available 24/7 at 741-741 for those who might be uncomfortable with a phone call.

A bill that would require assessment from the state auditor about the social and financial impacts that occur when health insurance companies deny coverage for certain types of health care to individuals based on gender identity cleared another legislative hurdle Tuesday.

An amended version of House Bill 285 was passed unanimously without further amendments by the House Committee on Consumer Protection.

The measure has one more hurdle to clear in the House, the Committee on the Judiciary and Hawaiian Affairs, before it can move to the Senate for consideration.

As of Wednesday, the committee hadn’t scheduled a hearing on the legislation.

 

A bill requiring an assessment by the state auditor of the social and financial impacts that occur when health insurance companies deny coverage for certain types of health care to individuals based on gender identity is advancing in the state House.

The bill has generated about 75 pages of written testimony — the vast majority in favor.

The latest version of House Bill 285 is scheduled for a 2 p.m. hearing today by the House Consumer Protection and Commerce Committee via videoconference.

The original version of the bill would have prohibited the denial of coverage to individuals for the purpose of gender transition if the policy would cover the requested procedure for other purposes.

For example, procedures that are a part of gender transition but have other purposes include hormone therapies, hysterectomies and mastectomies.

The bill unanimously passed Feb. 9 — with amendments, including the requirement of the audit — by the Committee on Health, Human Services and Homelessness.

The measure was introduced by Rep. Adrian Tam, a Democrat and openly gay legislator representing the Honolulu district that includes Ala Moana and Waikiki.

Three Big Island Democrats signed on as co-sponsors — Nicole Lowen, who represents North Kona; Jeanne Kapela, whose district stretches from Kailua-Kona to Naalehu; and David Tarnas, whose district includes a portion of North Kona, plus North and South Kohala.

“The Legislature finds that many transgender persons have experienced discriminatory treatment from health care insurance providers when seeking coverage for gender-confirming treatments,” the bill states, and posits that “transgender persons who are denied treatment are at a higher risk of suicide and depression.”

“The Legislature recognizes that, while federal health care guidelines previously prohibited health insurance and health care providers from discriminating on the basis of gender identity, these protections have been largely rolled back,” the measure continues.

The original bill was opposed by Hawaii Medical Insurance Association — the state’s largest health insurer — which requested the auditor’s assessment.

“Should this bill move forward, we respectfully request that the impact assessment be conducted first since it creates new mandated benefits that increase costs for our members,” said Matthew W. Sasaki, HMSA’s director of governmental relations.

In addition to HMSA, only one individual testified against the measure.

Providing commentary for the Department of Commerce and Consumer Affairs, Colin Hayashida, the state’s insurance commissioner, pointed out the statutory requirement that an auditor’s assessment be performed before provisions of the bill become law.

Hayashida said state law requires the auditor’s report to assess “the extent to which insurance coverage of the health care service or provider can be reasonably expected to increase or decrease the insurance premium and administrative expenses of policyholders.”

“If this bill is a new mandate, the department recommends adding language to the bill that would require the auditor’s report to assess the additional cost of a proposed mandate that may be subject to defrayal,” Hayashida added.

Hayashida also pointed out that the language in the original bill didn’t include health maintenance organizations such as the Kaiser Foundation Health Plan in its coverage requirements.

Kaiser, while not taking a position, also pointed to the statutory requirement for the impact assessment.

Lowen said she supports “the intent of it, which is to figure out if there’s been certain health care that’s … been denied to transgender individuals that should be covered.”

“Looking into it, I think an audit is a good place to start,” she said.

Beverly Yates-Tese, president of Hawaii Island LGBTQ Pride, said in a statement to the Tribune-Herald it “supports the right for everyone to have access to medical care.”

“This extends to all LGBTQ+ individuals and the care they need to be whole,” Yates-Tese said. “Whether it be transgender services, mental health care, family practice, or access to all emergency care. Insurance companies should be concerned with the health of the community as a whole. By providing and covering treatment for people of all identities they will greatly improve health outcomes and reduce the risks for an already high-risk population.”

Greg Lupton, Hawaii Island LGBTQ Pride’s treasurer, told the Tribune-Herald, “If we’re even talking about the personal and financial impact on transgender folk, it needs to be talked about. It needs to be investigated.”

“And if auditing is a way they’re going to investigate it … I think they’re going to find that we’d be a helluva lot better off as a state if these procedures were made more easily accessible to people,” Lupton said.

Organizations in favor of the legislation include the Hawaii Civil Rights Commission, the Office of Hawaiian Affairs, Pride at Work – Hawaii, Af3irm Hawaii, the Lavender Clinic and Malama I Ke Ola Health Center.

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