Congressional Record, Volume 166 Issue 113 (Thursday, June 18, 2020)

[Congressional Record Volume 166, Number 113 (Thursday, June 18, 2020)]
[Senate]
[Pages S3077-S3085]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

Equality Act

Mr. President, I come to the floor on another issue of freedom.
President Johnson said:

Freedom is a right to share, share fully and equally, in
American society. . . . It is the right to be treated in
every part of our national life as a person equal in dignity
and promise to all others.

It was 1996 when Senator Ted Kennedy brought the issue of ending
discrimination in employment to the floor of the Senate. In that year,
not so

[[Page S3078]]

long ago, virtually everything was simple majority in the Senate, as
designed by our Founders, as written in the Constitution. The vote
failed 49 to 50 because Senator David Pryor was at the hospital
attending to his son, the future Senator Mark Pryor, who had cancer. It
was a moment when the Senate nearly took a big stride forward in ending
discrimination in employment in America against our LGBTQ community.
Then, in November 2013, I brought to the floor the same bill, ENDA,
ending discrimination in employment. This Senate voted in a bipartisan
majority to end that discrimination. In fact, the vote was 2 to 1--64
to 32. Yet that bright moment here in the Senate, where we stood for
the vision of freedom, was not acted on by the House, and the bill did
not make it to the President's desk.
Now we stand here today, in 2020, and the Supreme Court on Monday in
Bostock v. Clayton County, in a 6 to 3 decision, has proceeded to act
to end discrimination in employment. In writing the opinion, Justice
Gorsuch said: ``In Title VII''--referring to the 1964 Civil Rights
Act--``Congress outlawed discrimination in the workplace on the basis
of race, color, religion, sex, or national origin.''
He wrote: ``Today, we must decide whether an employer can fire
someone simply for being homosexual or transgender.''
Everyone looked to the next paragraph and what would the answer be?
Gorsuch wrote this:

The answer is clear. An employer who fires an individual
for being homosexual or transgender fires that person for
traits or actions it would not have questioned in members of
a different sex. Sex plays a necessary and undisguisable role
in that decision, exactly what Title VII forbids.

Well, let the bells of freedom ring here in this Chamber and across
America. On Sunday of this last week, the day before the Supreme Court
decision, discrimination in employment against gay, lesbian, and
bisexual Americans was still legal in 29 States--a majority of States
in our country--and, on Monday, that discrimination ended. It is now
illegal in all 50 States of America, in all territories of America to
discriminate on the basis of who you are or whom you love.
The Court took a long, powerful stride toward the vision carved above
the doors of the Supreme Court: ``Equal Justice Under Law.'' No longer
can a mental health counselor named Gary Bostock be fired from his job
at child welfare services department for playing in a gay softball
league. No longer can a skydiving instructor named Donald Zarda be
fired because he is gay. No longer can a police officer in southern
Oregon named Laura Elena Calvo--with a sterling 16-year record of
promotions, commendations for pulling people from burning cars,
delivering babies on the side of the road, saving lives and more--be
fired because she was a transgender woman.

Employment discrimination ends in America. Let us savor that victory
for freedom. Let us celebrate that victory for equality and
opportunity. It is a long, powerful stride forward on the march for
freedom. But a long stride forward in a march, however significant,
does not mean that the march is over because, as wonderful as that
victory on Monday was, as wonderful it is to have discrimination end in
employment across the land, we still have a long way to go before LGBTQ
Americans are treated in every part of our national life as people
equal in dignity and promise to all others.
The protections on Monday involve employment, but those protections
do not extend to the titles of the 1964 Civil Rights Act that address
other issues--issues of education, issues of public accommodations--and
they don't extend to credit, financial transactions, transactions
covered by the CREDIT Act. They don't extend to jury service. They
don't extend to Federal funding of programs, meaning it is legal for
States to discriminate or cities to discriminate or counties to
discriminate on the basis of Federal law against participation in
Federal programs. It is unbelievable that we are still in that state,
but that is where we are. That is where we are right now, with
discrimination ended in employment but not ended in all of these other
categories.
There are a couple of possible paths forward. One is litigation that
continues on the same premise on which the Supreme Court acted on title
VII of the 1964 Civil Rights Act, and that means litigation in each of
these categories, case after case, slowly making its way through the
courts, slowly making it to the Supreme Court, meaning discrimination
continues year after year while the courts deliberate on this.
I have heard a number of Senators say the Court acted, but Congress
should have done it. Well, now we have the opportunity to do it. We
have the opportunity to do it by putting the Equality Act on the floor
of this Senate, putting it on the floor of the Senate today, having a
debate today, and having a vote today on whether to extend the very
premise at the heart of the Supreme Court's decision in employment to
all of the other key areas of discrimination that is still suffered
across this land.
Let us put the Equality Act on the floor. Let us debate it. Let us
pass it to fulfill the vision Thomas Jefferson put forward when, in the
words crafted for the Declaration of Independence: ``We hold these
truths to be self-evident, that all men are created equal, that they
are endowed by their Creator with certain unalienable Rights, that
among these are Life, Liberty and the pursuit of Happiness.''
Let us put the Equality Act on the floor of the Senate. Let us debate
it, and let us pass it to act on the premise that Senator Ted Kennedy
expressed: ``The promise of America will never be fulfilled as long as
justice is denied to even one among us.''
Let us put the Equality Act on the floor of the Senate and debate it
and pass it to fulfill the promise of freedom, the promise of freedom
that President Johnson so well expressed in ``the right to be treated
in every part of our national life as a person equal in dignity and
promise to all others.''
We have the power to ring the bells of freedom here in this Chamber.
Let us not miss this opportunity.
I am so pleased to be here with my colleagues who have fought for
this vision of freedom and equality and opportunity--my colleague Tammy
Baldwin from Wisconsin and my colleague Cory Booker from New Jersey,
who have been champions in leading this fight--a fight envisioned now
by a tremendous number of Senators endorsing and cosponsoring the
Equality Act. Let us put that act on the floor
I yield to my colleague from Wisconsin.
Ms. BALDWIN. Mr. President, I rise today to recognize an enormous
step forward for our country, which happened earlier this week, on
Monday. Once again, on a morning during Pride Month, our Nation came
closer to realizing the promise of equality for lesbians, gays,
bisexual, transgender, and the queer community.
The Supreme Court has made it clear that workplace discrimination
against LGBTQ people is wrong, and our Nation's civil rights laws
prohibit it. While this is a joyous day and a joyous week, I want to
take a moment to acknowledge the untold number who have suffered in
this country for years without recourse. I want to recognize those
brave LGBTQ people who received pink slips, were passed over for
promotions, suffered harassment and bullying in break rooms, or never
got that initial interview--all simply because of who they are or whom
they loved.
I particularly want to thank the plaintiffs who brought these cases:
Gerald Bostock, Aimee Stephens, and Donald Zarda, as well as the
families and friends and lawyers who supported them. Sadly, Aimee and
Donald did not live to see this transformative moment for our country
and our community, but we will remember them and honor the efforts that
they and so many others have made to get us here. We will commit
ourselves to continuing to push forward for full equality for them.
On Monday, the Supreme Court affirmed what many Federal courts, the
Equal Employment Opportunity Commission, and so many of us have
recognized for years--that title VII of the Civil Rights Act of 1964 is
properly understood to prohibit discrimination based on sexual
orientation and gender identity.
As Justice Gorsuch wrote for the majority:

Today, we must decide whether an employer can fire someone
simply for being homosexual or transgender. The answer is

[[Page S3079]]

clear. An employer who fires an individual for being
homosexual or transgender fires that person for traits or
actions that it would not have questioned in members of a
different sex. Sex plays a necessary and undisguisable role
in the decision, exactly what Title VII forbids.

This decision is far from radical, but it is transformative. It means
that at long last in every corner of this Nation, in big cities and
small towns, LGBTQ people are waking up in a fairer country. They now
know that they have recourse if an employer discriminates against them
simply because of who they are or whom they love. Employers know
unambiguously that they have an obligation in every State to judge all
of their employees on merit, not sexual orientation or gender identity.
While we have taken another big step forward--and it is a big step--
in the march toward full equality for LGBTQ Americans, we are not there
yet. Lesbian, gay, bisexual, transgender, and queer people face
discrimination in many more aspects of their lives than the workplace.
Our country needs to send the message that treating people unfairly
because of their sexual orientation or gender identity is wrong and
that it will not be tolerated, period, whether that is while buying a
house, going out to dinner, shopping in a store, serving on a jury, or
seeking help from a government program.
While the Court told us on Monday that discrimination based on sexual
orientation or gender identity is necessarily sex discrimination, those
cases were about employment. While I would expect that any
administration would now take a long, hard look at its wrong-headed
efforts--based on the legal arguments that the Supreme Court has just
rejected--to write LGBTQ people out of sex discrimination protections
in education, healthcare, and other areas, I do not have confidence
that this administration is going to do so.
There are areas of Federal civil rights law, such as those governing
public accommodations and Federal financial assistance, which don't
even yet prohibit discrimination based on sex. That is why the Senate
must take up and pass the Equality Act. Senators Merkley, Collins,
Booker, and I introduced this bipartisan measure to ensure that LGBTQ
people have the same nondiscrimination protections as other Americans
by adding sexual orientation and gender identity alongside all
protected characteristics, such as race and religion, to existing
Federal laws. It would ban discrimination in a host of areas, including
housing, public accommodations, jury service, access to credit and
Federal funding, as well as employment.
The bill would also strengthen our civil rights laws by adding
protections against sex discrimination to the Federal laws where they
have not been included previously, including those addressing public
accommodations and Federal funding.
More than a year ago, a bipartisan majority of the House of
Representatives passed the Equality Act. Unfortunately, like so many
other pieces of legislation that would improve the lives of the
American people, it has been ignored by the Senate majority leader and
placed in his legislative graveyard.
The Equality Act cannot be ignored any longer by the Senate, and
LGBTQ people should not have to wait any longer to enjoy the full
protections of our Nation's civil rights laws.
I urge the Senate to build on the Supreme Court's decision and act
today to bring our Nation closer to the promise of equality by passing
the Equality Act.
Finally, I want to close by acknowledging the extraordinary moment in
which our Nation finds itself today. Thousands upon thousands are
demanding the country confront racial injustices and systemic racism.
They rightfully call for change, and they righteously call for change,
and it is my hope that Congress will take an important step in righting
some of those wrongs by passing the Justice in Policing Act of 2020
without delay.
We must do so much more, and today I am keenly aware of the Black and
Brown LGBTQ people who experience discrimination and injustice in this
country--not just because of sexual orientation or gender identity but
also because of race or ethnicity.
As we approach another anniversary of the Stonewall riots that
sparked the modern LGBTQ movement for equality, I am also mindful of
the leadership of Marsha P. Johnson and Sylvia Rivera, transgender
women of color, in that historic moment. I hope the brave, courageous
legacy of these leaders and the urgent needs of Black and Brown LGBTQ
people would inspire us to take another step to strengthen the civil
rights for all Americans and pass the Equality Act.
I now yield to my colleague from Michigan, Senator Stabenow.
The PRESIDING OFFICER. The Senator from Michigan.
Ms. STABENOW. Mr. President, first of all, I want to thank my
wonderful colleagues for their leadership, Senator Merkley and Senator
Baldwin, for not just being on the floor today and speaking out but
speaking out every day for introducing the Equality Act, of which I am
very proud to be a cosponsor, and for continually standing up for the
rights of all Americans.
In 2013, a Michigan funeral director wrote a letter. It said:

What I must tell you is very difficult for me and is taking
all the courage I can muster. I felt imprisoned in a body
that does not match my mind, and this has caused me great
despair and loneliness.

She told her coworkers, from now on, she was choosing to live her
truth; from now on, she would be living and working as a woman.
Unfortunately, she paid dearly for her courage, and 2 weeks later she
was fired.
That woman was Aimee Stephens of Redford, MI
This week, Aimee's courage literally changed history--literally
changed history. In a 6-to-3 decision, the Supreme Court ruled that
what happened to Aimee was illegal. It was illegal. Period. Employers
cannot fire or otherwise discriminate against employees simply because
of who they are or whom they love. Period.
Sadly, Aimee didn't get to celebrate the landmark victory, and we all
wish she were here right now to be able to join and lead the
celebration. She died last month at age 59. She will go down in history
as someone who took a stand for equality, for basic fairness, and made
our Nation a better place. So many people have joined her in this
fight, getting to this victory.
It is now time to further honor her courage and the courage of so
many others by passing the Equality Act, and we can do it today. That
is the good news. Right now, on the floor today, we can do that
together. What a great way to end this week; this month of June, this
Pride Month. What a great way this would be.
The Equality Act is pretty simple. It protects people against
discrimination based on sexual orientation or gender identity in all
aspects of their lives. Unfortunately, this legislation, as my
colleagues have said, which has already passed the House, has been
sitting on Mitch McConnell's desk gathering dust for nearly 400 days--
400 days since the House of Representatives took action. It is time to
shake off that dust and get this thing done for Aimee and for everyone
who has fought alongside her and continues to fight today to make our
Nation a more equitable place.
Now, our Republican colleagues, however, are more interested in
pushing through extremist judges who have no interest in LGBTQ
equality.
Later today and next week, we will be voting on two judicial
nominations--Justin Walker and Cory Wilson. It is, frankly, insulting
that these two nominations are even coming to the floor--insulting to
the American people that they are coming to the floor.
Justin Walker's nomination is opposed by 275 outside groups,
including the Leadership Conference on Civil and Human Rights and the
National Center for Transgender Equality.
As for Cory Wilson, he supports H.B. 1523, the so-called Protecting
Freedom of Conscience from Government Discrimination Act, and that
would give broad permission for people and businesses to deny services
to people based on sexual orientation and gender identity.
Both of these nominees--both of them would overturn the Affordable
Care Act, which has made lifesaving differences for so many members of
the LGBTQ community and Americans all across our country.
Justin Walker wants the courts to throw out the entire Affordable
Care

[[Page S3080]]

Act, including protections for people with preexisting conditions. He
called the Supreme Court decision upholding the ACA ``indefensible and
catastrophic.''
Millions of people get their healthcare through the Affordable Care
Act. Everyone who has an insurance policy is able to do that and get
covered, even if they have a preexisting condition, because of the
Affordable Care Act.
Cory Wilson used even more colorful language. He called the law
``illegitimate and perverse.'' Providing people healthcare he thinks is
perverse, and this is somebody the Republicans are going to put on the
court.
He even opposed expanding Medicaid coverage in Mississippi, a change
that would literally save lives in the middle of a pandemic.
We know what we need to do because Aimee showed us. We need to pass
the Equality Act now--today. We can do that today. Wouldn't that be
wonderful, on a bipartisan basis, to pass this today?
We need to vote no on two judicial nominees who are far out of step
with the basic American ideals of equality and fairness.
Aimee Stevens was courageous. Four hundred days is way too long for
millions of Americans to wait for the U.S. Senate to step up and do its
job. It is time for all of us to truly stand up for equality for the
LGBTQ community and set the foundation that we believe in equality for
all Americans.
I yield the floor.
The PRESIDING OFFICER. The Senator from Oregon
Mr. WYDEN. Mr. President, before she leaves, another good idea from
Senator Stabenow--pass the Equality Act today. Too logical, I guess,
but it is another good idea, and I thank my colleague for it.
I also want to commend my partner from Oregon, Senator Merkley, who
has been leading this fight for years now. Wisconsin often partners
with Oregon, going all the way back to our shared ownership of Wayne
Morris. I just want to thank my colleagues for the great work they have
been doing and just take a couple of minutes to talk about my pride in
standing with them to fight for the passage of the Equality Act.
We have come together during the middle of Pride Month. In 2020, with
the pandemic continuing to spread, Pride Month looks a little different
than it has in the past--no parades, smaller celebrations--but it still
has been a historic month when it comes to LGBTQ rights, perhaps more
so than any other since marriage equality became the law of the land in
June 2015.
A few days ago, the Supreme Court ruled that the Civil Rights Act of
1964 protects LGBTQ Americans against discrimination in the workplace.
The majority said an employer who fires an individual merely for being
gay or transgender defies the law.
Now, this ruling was a little bit of a surprise. I mean, it was
absolutely correct in that it recognized that the law offered equal
protection for LGBTQ Americans--a fact that should never have been in
doubt.
I also want to say on the floor today we are going to have to
continue to be on guard that this administration's judges will use the
approach underpinning this ruling as cover to strip equal protection
from other people in future rulings.
When you get the wrong approach resulting in the correct ruling, we
have to be vigilant--vigilant, vigilant, and more vigilant in fighting
for the correct results again and again and again.
The ruling came just a few days after the Trump administration tried
to take America in exactly a different direction, announcing that it
was green-lighting healthcare discrimination against transgender
Americans--an ugly, shameful action to take. How cruel that the
administration actually said: We are going to announce this during
Pride Month. We are actually going to use Pride Month to be cruel.
It was a reminder to a lot of people that the fight for LGBTQ rights
didn't end with the victory on marriage equality. For every landmark
ruling that moves the cause forward, there is somebody like Donald
Trump, who is always looking to see if they can drag the Nation back to
the days when discrimination was business as usual.
Until Monday's ruling, employers in more than half the States were
allowed to fire employees for their sexual orientation or their gender
identity. That was in more than half the States, but that injustice is
now a thing of the past.
We can't count on this week's Supreme Court ruling against workplace
discrimination to bring on the end of discrimination in other parts of
life in our country. The Senate can't wait for any other court cases to
move forward before we take real action on this floor. That is why my
colleagues and I are here today. We want to call for the immediate
passage of the Equality Act. If discrimination against LGBTQ Americans
is illegal in the workplace, then it is illegal in housing; it is
illegal in education; it is illegal in public services and more. That
is what the Equality Act is all about. It is about recognizing the
dignity and the humanity of LGBTQ Americans, and, most importantly,
enshrining it into the law. It is the next step that will move the
cause forward, and there is bipartisan legislation that reflects the
will of an overwhelming majority of the American people. The Senate
ought to come together and pass it now.
Justice Kennedy wrote--and I will close with this because it sums up
what is in my heart today, ``The Constitution promises liberty to all
within its reach.''
There is much to be done on delivering on that promise outlined by
Justice Kennedy. So we are going to be back here on the floor of the
Senate, fighting for the passage of the Equality Act. Senator Stabenow
was spot on. We ought to have done it today, and we are just going to
be back here again and again and again in the weeks and months ahead
until we have that promise of equality in every corner of the land.
I yield the floor.
The PRESIDING OFFICER. The Senator from Colorado.
Mr. BENNET. Mr. President, I want to thank my colleagues from Oregon,
Senator Wyden, for his remarks; Senator Merkley, for his leadership on
the bill; and Senator Baldwin from Wisconsin, for her extraordinary
leadership and service to our country.
It is a great privilege to be here today. My friend Cory Booker from
New Jersey has been fighting for these issues for his whole career. Who
knows, as I know, that anyone who studied the history of our democracy
knows it has always been hard to make progress. This struggle has
always been a battle of our highest ideals and our worst instincts as a
country.
It has been true since our founding, when the same people who wrote
that ``all men are created equal'' also perpetuated human slavery and
denied equality to so many others. In fact, I don't think it is too
much to say that our history is a story of our struggle with that
contradiction between the promise of equality and the reality of
inequality in America--between our highest ideals and our worst
instincts. We struggle with that today.
Since he took office, over and over, President Trump has called on
our worst instincts in almost everything he has done, including his
attacks on access to healthcare, housing, and education for LGBTQ
Americans.
Just last week, he went out of his way to strip transgender Americans
of their access to healthcare, but just as President Trump was
depriving hard-won rights, dragging us backward again, in Colorado, on
the very same day, our State legislature passed a law to make it harder
to wage violence against LGBTQ people in my State.
And listen to this: The vote was 63 to 1 in the Colorado House. It
was 35 to 0 in the Colorado Senate.
Notwithstanding President Trump's anti-civil rights, anti-civil
liberties agenda, in Colorado--a Western State, a purple State--
Republican and Democratic elected officials, in their legislative
season, are fighting for our highest ideals and rejecting our worst
instincts.
In fact, my State passed our version of the Equality Act over a
decade ago. It is why we banned conversion therapy and passed Jude's
Law, which makes it is easier for transgender Americans to change their
name and government documents. It is how we have elected our State's
first openly gay Governor, Jared Polis, and our first transgender State
legislator, Brianna Titone. It is why we were one of the first States
in

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America, I say to my college from New Jersey, to pass real
accountability for police brutality with a bill led by Leslie Herod--
Colorado's first LGBTQ State legislator of color. This week, we passed
that bill 52 to 13 in the House and 32 to 2 in the Senate. It contains
many of the same reforms that Senator Booker and Senator Harris are
leading on here.

So I am here to tell you that there are more and more in Colorado and
in the country who understand what equality has come to mean in America
and how to resolve some of these contradictions in the year 2020, and,
this week, even the U.S. Supreme Court seems to understand it.
Just in the last week, a Republican-appointed Justice rejected Donald
Trump's arguments and wrote for a majority of the Court, affirming
equality for LGBTQ Americans. Then, this morning, the Court overturned
President Trump's malicious attack on Dreamers, reaffirming the rule of
law and, for the moment, protecting three-quarters of a million people
who know no other country but the United States of America.
Now it is time for the Senate to do our work, finally, and pass the
Equality Act. The House passed the Equality Act 13 months ago, and we
have not acted in our typical fashion. That is another 13 months when
LGBTQ Americans could get married on a Sunday and be fired on Monday,
another 13 months when our neighbors could be denied housing, denied
healthcare or be turned out of a store because of who they are.
Americans understand that no good comes from hoarding freedoms and
equality. When we take the opposite view, we act against our
traditions. As a nation, we will never flourish if we choose to depend
on a permanent underclass that is deprived of some or all of the rights
and freedoms others enjoy. Free people do not remain free by denying
freedom to others. We should vote on the Equality Act and pass it
today.
I yield the floor
The PRESIDING OFFICER. The Senator from Minnesota.
Ms. KLOBUCHAR. Mr. President, I join my colleagues today, in the
middle of Pride Month, to celebrate the Supreme Court's landmark
decision this week in Bostock v. Clayton County, protecting LGBTQ
rights and protecting people from discrimination in the workplace, and
to urge all of our colleagues to secure and extend those protections by
passing the Equality Act.
Something else big happened in the Supreme Court, and that was today,
with the Supreme Court's decision on DACA, on Dreamers--allowing them
to stay in this country and asking the administration to open up the
application process for citizenship. That is relevant because it is
about civil rights, but it is also relevant because the Supreme Court--
this conservative Court--has had to step in because this body has not
been doing what it should have been: passing the Equality Act and
passing comprehensive immigration reform. So let us remember that as we
celebrate the decision in the Bostock case and as we move toward
equality.
I thank Senators Merkley, Baldwin, and Booker for their leadership on
this important bill and for bringing us together today.
Over the last few decades, we have made progress in the fight for
equality. We have stood up for what is right, and we have worked hard
to make this a country in which people can safely, proudly, and legally
love whom they love. It was not long ago when a person could be
prosecuted for being gay and when don't ask, don't tell was the law of
the land--when I came to the U.S. Senate--and when States were
permitted to deny LGBTQ couples the right to get married under the
Defense of Marriage Act.
This week, our country took an important step forward with the
Supreme Court's decision that recognizes that the Civil Rights Act of
1964, which prohibits employers from firing employees because of sex,
protects LGBTQ people in the workplace.
We can celebrate today that justice was delivered for Aimee Stephens,
who was fired when she informed her employer that she was transgender,
and for Donald Zarda and Gerald Bostock, who were fired when their
employers learned they were gay.
But, of course, this is more than about three people. As Mr. Bostock
said, ``This fight became about so much more than me.'' Their courage
to stand up in the face of injustice will forever change this country
for millions of LGBTQ people and their families, and it makes our
country a more just nation.
Although the Court's decision is a landmark victory, we still have
miles to go because it is not right when the Commander in Chief tells
brave transgender Americans who want to serve and protect our country
in our military that they are not welcome; it is not right when this
administration is trying to take away the hard-won rights of LGBTQ
people in healthcare and education; and it is not right that you can
drive across the United States on a cross-country trip and find that
the laws and protections could be different at every rest stop.
That is why I was proud to cosponsor, on the day it was introduced,
the bipartisan Equality Act with my colleagues who are here today, and
it is why I am calling on our colleagues across the aisle to pass this
bill.
This bill, which already passed the House by a vote of 236 to 173,
will go a long way in protecting LGBTQ Americans from discrimination.
The Equality Act would build on the Supreme Court's decision and make
nondiscrimination protections consistent and explicit. It would amend
laws like the Civil Rights Act, the Fair Housing Act, the Equal Credit
Opportunity Act, and Federal employment laws to ensure that all
Americans, regardless of their sexual orientation or gender identity,
have equal access to housing, education, and federally funded programs.
We should not wait any longer to extend these protections, for nearly
two-thirds of LGBTQ Americans report experiencing discrimination in
their personal lives. These problems are compounded by race and income,
especially for trans women of color. Yet it has been over 1 year since
this bill passed the House.
In 2000, when I was the county attorney in our largest county in
Minnesota, I was invited to the White House to introduce President Bill
Clinton at an event to urge the passage of hate crimes legislation. We
had had an African-American young man who had been shot by a guy who
had said that he had wanted to go out and kill someone on Martin Luther
King Day. That happened. We had had an employee who had gotten beaten
with a board by the foreman at his workplace for his simply speaking
Spanish. I had taken on a number of these crimes, so I had been invited
by the President to urge Congress to pass the Matthew Shepard hate
crimes legislation, which covered a wide range of hate crimes.
During that event at the White House--my first time ever there--I got
to meet the investigators in the Matthew Shepard case. They were these
two burly cops from Wyoming, and they talked about the fact that until
that investigation--I think Senator Baldwin is nodding her head and has
probably met them as well--they really hadn't thought about what
Matthew Shepard's life was like or the lives of other LGBTQ people.
Then, as they started to investigate what had happened--and we all
remember how he was left hanging on a fence post, and the first people
who saw him thought he was a scarecrow--these investigators, these
police officers, got to know the family and the case. They got to know
his mom, and they got to know his friends. During the course of their
investigation, as they began to understand what life was like for
Matthew Shepard, their own lives were changed.
I think this is happening right now around this country after the
murder of George Floyd in my State, and I know it has been happening
when it comes to our LGBTQ community. That is why, on that day way
back, we were in the White House to introduce that bill. Nearly 10
years after that event at the White House, during my first year as a
U.S. Senator, I got to be one of the deciding votes to finally pass
that hate crimes bill.
So I say to my colleagues who are fighting for justice, who are
fighting for justice in policing, who are fighting for justice in our
LGBTQ community, who are fighting for justice for our immigrants, the
change will happen, but we can't wait 10 years for this change to
happen. The people of this country

[[Page S3082]]

are demanding that it happen now. We need to come together and finally
pass the Equality Act and do all of these other good things that are
right here, that are right on our desks. We should do them
immediately--not next year--and not wait. Now
I yield the floor.
The PRESIDING OFFICER. The Senator from New Jersey.
Mr. BOOKER. Mr. President, I thank my colleagues who are here and for
all of the work that has been done around the Equality Act, not just
here in the Senate but also in the House of Representatives.
I want to make this very clear. You look at history, and you see that
the fundamental equality of all Americans has been denied for so many
generations--for women who fought for equality under the law and the
right to vote; for African Americans, who fought for equality under the
law. We have seen from our founding they have struggled to make real
the promise of this Nation--a promise of an ideal that we are all equal
under the law.
Our Founders--these imperfect geniuses--enshrined these ideals. This
Nation was not founded in perfection but in aspiration. The very
Founders themselves referred to Native Americans as savages. They
talked about women as not being equal citizens. They denied African
Americans full and equal citizenship. Yet these aspirational documents
were so profound that every generation of Americans has called to our
founding ideals to overcome the inequality that has been inherent in
our country.
Susan B. Anthony called to the founding documents for her equality
and the equality of women. Martin Luther King, on The Mall, called to
that check--to that promissory note--that it was time. Yet here we are,
in the year 2020, still calling for the full equality of all American
citizens when it comes to lesbian, gay, bisexual, and transgender
Americans.
I think back to my own family--to my grandparents and great-
grandmother--who talked about the excuses that were used to deny them
equality. There were religious excuses. I am a big believer in
religious freedom, but people sought to deny Blacks and Whites from
marrying. In fact, when Loving v. Virginia passed, the majority of
Americans were still against interracial marriage in this country.
Somehow, people were using religion as a shield from establishing the
fundamental ideals of this country. We overcame that.
These types of reasons were given for the dehumanizing treatment of
Native Americans, and these kinds of excuses were used to justify the
segregation of African Americans. In every generation, we fought and we
struggled and we came together--multiracial, multiethnic, diverse
coalitions--to overcome this.
This week, I was so grateful to see the decision of the Supreme
Court, but I was of mixed feelings about it. Why would it take an
action of the Supreme Court to justify what already is--equal humanity?
equal dignity? Why would it take so long for a country to say: ``In
this Nation, a majority of States cannot discriminate against you. You
cannot be fired just because of who you are''?
I hear the echoes of my own ancestry growing up in a country in which
children were told and saw clearly before them laws enshrined that were
bigoted and biased; that they were not equal citizens, and even though,
when we stand up in our grade schools, we have to say those words
``liberty and justice for all,'' what does it mean to a child who is
denied those things?
I see us in a country now in which we are raising children who are in
danger. LGBTQ kids are almost five times as likely as their straight
peers to attempt suicide. LGBTQ kids--about 30 percent--admit to
missing school because of being in fear for their safety. This is in
America in 2020. Black trans women are dying at unacceptable,
unconscionable rates. I say dying. They are being murdered. There have
been 15 transgender or gender nonconforming people who have been
murdered, and last week alone, two transgender women were killed--
Dominique Fells and Riah Milton.
We have work to do in this country to establish the fundamental
ideals that have been said from the founding of this country that we
will all be equal under the law, the fundamental ideals from the
founding of this country that we are a nation of liberty and justice
for all.
Here we are at the crossroads of history, forcing our fellow
Americans to come and ask for what is fundamentally theirs already--
equal dignity, equal rights. The Equality Act is too late already. It
is too late to do what was preordained by the very founding of this
Nation. We are too late already to save the lives of children who have
been forced to live in a nation that doesn't recognize their equal
dignity. We are too late already to protect the shame of people who
have been fired just because they are gay, who have been denied
accommodation just because they are gay--the humiliation of which, I
dare say, so many in this body know from their families' stories.
So we come here to the floor to ask for what is overdue, to ask for
us to establish in law what is true in the spirit of this Nation, and
to echo the words of our ancestors, great suffragettes, great civil
rights leaders, great Native Americans, who have all come to this
Capitol to say: This is who we are--equal citizens under the law.
To my colleagues who are with me today, I tell you that, no matter
what happens with this unanimous consent, justice will come to this
country. No matter who stands against this Equality Act, they stand on
the wrong side of history, on the arc of the moral universe, but it
bends toward justice. Well, it never bends automatically. We need some
arc benders. For too many people in this country, justice delayed is
justice denied. So we will not give up. We will not yield. We will not
equivocate. We will not retreat. This will become the law of the land.
We have made some steps in the right direction of justice, but we are
still in the foothills. We have a mountain to climb, but I know we will
make it to the mountaintop. I know that this Nation will fulfill its
promise to all of its people and, indeed, become the promised land.
I yield the floor.
The PRESIDING OFFICER. The Senator from Oregon.
Mr. MERKLEY. Mr. President, I appreciate the powerful words, the
passionate delivery of stories on the defense of freedom, the defense
of equality, the advance of justice, and the presentations of my
colleagues from Wisconsin and Michigan, my partner from Oregon, my
friend from Colorado, the Senator from Minnesota, and Senator Booker
from New Jersey. Their words speak to the heart of what our Nation is
about--equality, opportunity, justice, and freedom.
I will, therefore, ask that we bring this bill about equality to the
floor, that we go forward in the great tradition of this Chamber and
this Senate to debate issues that involve the opportunity for every
individual to thrive in our Nation. Time and again, we have held those
debates before. We held them in 2013 on the Employment Non-
Discrimination Act.
Now, I understand some colleagues have come to the floor to object to
this Senate's entertaining such an important debate. They have come to
the floor to obstruct the opportunity of this Chamber to engage in a
dialogue on this important issue--so violent to the life of millions of
Americans. I ask them to reconsider.
Have the courage to debate this issue on the floor--to bring, in the
great tradition of this country, an issue violent to freedom to be
considered here.
One colleague responded to the Supreme Court's decision on employment
nondiscrimination earlier this week by saying: This judicial rewriting
of our law short-circuited the legislative process and the authority of
the electorate. Well, let no Member of the Senate today short circuit
the legislative process by objecting to this important debate on the
floor of the Senate.

On behalf of equality and opportunity and freedom, I ask unanimous
consent that the Judiciary Committee be discharged from further
consideration of H.R. 5 and the Senate proceed to its immediate
consideration. Further, that the bill be considered read a third time
and passed and that the motion to reconsider be considered made and
laid upon the table.
The PRESIDING OFFICER (Mrs. Fischer). Is there objection?
The Senator from Utah.
Mr. LEE. Madam President, I am reserving the right to object.

[[Page S3083]]

There is a single thread that runs through the Supreme Court's
decision in the Bostock case earlier this week and all the way through
the legislation now under discussion on the Senate floor, and that
principle deals with nondiscrimination. It is a principle that, as
Americans, we believe that people shouldn't be treated differently on
the basis of factors, characteristics, and traits that have nothing to
do with their job. I think most Americans can agree with that, and I
think most Americans can agree that an individual shouldn't face such
discrimination in the workplace based on his or her sexual orientation.
The important thing that we have to remember is that much of where
the law is found and much of what we can perceive from a position of
justice and equality and fairness relates to where the exceptions are
found. I have got two principal concerns with this legislation that are
also shared by the Bostock ruling. The first relates to exceptions
related to religious employers.
Neither the Bostock decision nor the Equality Act takes the care to
ensure that religious employers will be treated fairly under this
approach. We need to be mindful of the need of a religious employer to
maintain its doctrine and its teachings, not only in the hiring of its
ministers but also in the hiring of other people who worked toward
moving forward that religious institution's teachings in the way they
live their lives, in their beliefs, and in their willingness to teach
those things to others. This legislation doesn't do that. I think any
legislation that we move forward on this needs to have it.
Secondly, neither this legislation nor the Bostock decision takes
into account some significant distinctions between sexual orientation
on the one hand and gender identity on the other.
In the case of gender identity, the law needs to take into account
certain questions regarding what impact the law might have on girls and
women's restrooms and locker rooms, girls and women's athletics, and
single-sex safe places for people who are, for example, the victims of
domestic or sexual abuse. This law, like the Bostock decision, doesn't
operate with a lot of precision and sort of takes a meat cleaver to the
issue without taking into account exceptions for religious entities and
distinctions between sexual orientation and gender identity. On that
basis, I have concerns.
Knowing that I have some colleagues who want to speak to this issue,
I decline to object as of this moment.
The PRESIDING OFFICER. The Senator from Missouri
Mr. HAWLEY. Madam President, reserving the right to object, I would
just like to observe that it was just over 20 years ago that this
Chamber and the analog Chamber across the way in the House of
Representatives passed almost unanimously a statute called the
Religious Freedom Restoration Act. It was sponsored in the House by
then-Representative Schumer, and it was sponsored in this Chamber by
Senator Edward Kennedy, and signed by President Bill Clinton into law,
who, upon its signing, referred to religious liberty as our first
freedom--those are his words--and he later pointed to the Religious
Freedom Restoration Act as one of his proudest accomplishments as
President of the United States. Its cosponsors in this body included
Senators Feinstein and Murray and Leahy. It was bipartisan is my point,
to put it mildly.
Yet, today, this short time on the legislation that is offered on
this floor now, that has not gone through the normal process of
committee referral, debate on the floor but would be passed now,
without any further discussion, guts key provisions of the Religious
Freedom Restoration Act. This is coming on the heels of a Supreme Court
decision just 2 days ago that rewrites entire statutes in American law
and in its 33 pages has nearly nothing to say about religious liberty
or religious believers in this country. In fact, the only thing that
the opinion does say of any consequence is this:

How [the courts'] . . . doctrines protecting religious
liberty interact with Title VII [as rewritten by the court]
are questions for future cases.

Now, I respect, very much, my colleagues across the aisle and their
passion for this issue and their sincerity in this cause. I would only
ask that the rights of well-meaning, sincere religious believers not be
steamrolled and overlooked and shifted to the side as part of this
process. We should be able to come together and stand together in the
effort to see all people be given their constitutional rights and have
their constitutional rights protected.
The effects of this bill is forcing taxpayers to pay for abortions,
forcing doctors and nurses to perform abortions against their will, and
forcing faith-based hospitals and clinics to perform abortions. H.R. 5,
this bill here, would supersede existing restrictions on abortion,
including funding, including health and safety standards, and other
regulations that the States have passed.
It would force faith-based adoption agencies, some of which have been
helping birth mothers find a safe and loving and permanent home for
more than 100 years--it would force them out of business. It would
coerce those who don't want to speak or who hold different beliefs into
adopting this set of practices and principles and beliefs at work--
these doctors, these nurses, and these faith-based agencies.
I submit to you that this is not the way to find consensus in
America. This shunting aside of the constitutional rights of sincere,
well-meaning people of faith is not the way to proceed. This gutting of
the Religious Freedom Act--and I say that because H.R. 5 explicitly
carves out of the Religious Freedom Act, it explicitly carves out of
its safety provisions all of those requirements I just mentioned. It
rolls back the liberties afforded to people of faith--all faiths, by
the way. One of the beauties of the Religious Freedom Restoration Act
is that it covers people of all faiths, any faith, and this bill would
roll those protections back. It would do it without the chance for
debate. It would do it outside of our normal procedures.
For those reasons, I express these reservations. Again, I thank my
colleagues on the other side of the aisle for their work on this issue,
their passion for this cause, and their sincerity in what they believe.
I hope that we might find a better way to go forward together, but I do
not object.
The PRESIDING OFFICER. The Senator from Oklahoma
Mr. LANKFORD. Madam President, I am reserving the right to object. No
person should be discriminated against in America. No one. It is a
basic constitutional principle. We are all equal under the law, all of
us. We have different ideas about music and food. We have different
ideas about sexuality. We have different ideas about occupations. We
have different skin colors. We are the tapestry that we talk about, and
we are working to make a more perfect Union. I absolutely believe that
no person should be discriminated against in America.
The Equality Act doesn't just make everything equal, though. It has a
great title. Who can oppose equality? No one. It is a basic principle
of American values. We don't oppose equality, but we do oppose when,
through legislation, you take the rights of one and dismiss the rights
of others and say: Your rights don't count, only this group counts, and
only this person counts. We, in America, have tried to work together,
in all of our differences, for over two centuries, to learn better how
to hear the rights of another one, to accommodate, and to find those
spots where the rights of two individuals collide and to work it out
among each other. The Equality Act does not do that. I wish it did. It
changes things dramatically.
Let me just give you a few examples. It reaches into high school
sports and says for male and female sports, that individuals' sexual
orientation and gender identity can move between those. There is no
standard for testosterone. There is no standard for moving through
transition surgery. There is no standard at all set on it. It opens it
up for any male--biological male--to step into female sports on the
high school level or in the college level or in the pro-athlete level
and be able to move into that sport. That grossly disadvantages girls
in sports, but their rights are denied.
We have already seen this in several States where State record
holders for track, for instance--someone who was a biological male
competing in women's athletics denying the other girls who were
competing in that from opportunities for scholarships to college,

[[Page S3084]]

to be able to move on to other athletics. Their rights were ignored
because these rights were prioritized.
In adoptions, we need more adoption areas. We need more foster care
in America, not less. The Equality Act says that if you are a faith-
based adoption agency that only places children in a home where there
is a mom and dad there, then you either have to change your faith or
close. You have no other option. The Equality Act says to that
institution: I would rather have fewer adoption agencies in America
than have you open.
That is not protecting the rights of all Americans. That is not
learning how to accommodate together. Why can't we have adoption
agencies that do adoptions in LGBT homes and some that do adoptions
that don't? Why can't we have both? Why can't we accommodate both? The
Equality Act does not allow that
The Equality Act treats every job in America exactly the same and
says that an individual who is qualified for that job should be able to
take that job, regardless of any issue. Let me give you a first example
of that.
If you have an individual going through TSA--and what a lovely
experience that is for all of us--this Equality Act would say: When
your alarm goes off and you have to get the full-body pat-down, a
transgender individual could be your TSA person giving you the full-
body pat-down. They would be required to not prohibit that.
Now, for some people, they would be like: I don't care. It is a pat-
down. I don't care. For other people, it would be like--there is a
reason why TSA has done pat-downs of a man for a man and a woman for a
woman because there are many people uncomfortable with someone of an
opposite gender who does that to them. They just are. Maybe you call
them prudes, but we have honored their rights. The Equality Act does
not. It ignores their rights and says that you no longer have the right
to disagree with this, and you have to just accept it.
It also dramatically changes hiring in America in a way that is
unexplored. There is a reason we send bills through committee, not just
bring them to the floor and demand that they pass on the same day they
land on the floor without going through committee. There is a reason we
do that--because this bill changes the way hiring is done in America in
a way that has not been tested for everyone.
This adds a new feature to title VII, where it says, in title VII,
that you can't discriminate based on race, on sex--that has now been
redefined, obviously, by the courts--on religion, all these things. It
clarifies. You can't discriminate based on that. But it adds a new
phrase on this. ``Perception or belief'' is the new phrase.
This is how that would be applied in courts. If I go to an interview
in a job and I am not hired, I can sue that employer because I
perceived they were thinking I was gay and so they didn't hire me, or--
because it applies to all of it--I could, actually, because this does
expand this significantly, if I go in to get a job and I am not hired,
I could sue them for not hiring me because I perceived that it was
because I was a Christian and they didn't hire me. I perceived that it
was because I was White that they didn't hire me. I don't have to prove
anything. It is based simply on my perception or belief. That is an
untested expansion.
Now, this term ``perception or belief'' is lifted right out of our
hate crime statutes, but hate crime statutes, on their face, are all
about the motive for it, and you are trying to read into a crime the
motive for that crime. Now we are trying to literally read someone
else's mind in a hiring situation and to say that I perceived it, so if
you don't hire me, I can sue you.
Why are we doing this? That opens up litigation all over the country
on every area, not just on this issue of LGBT rights--on every
situation and every hiring because it is very expansive. We probably
should slow down and look at that before we open that floodgate in
America, but this does not.
Today is about demanding that it passes right away. Interestingly
enough, as some of my colleagues have mentioned, the Religious Freedom
Restoration Act is wiped away in this and ignored. Interestingly
enough, the Supreme Court stated just this week that on this issue,
Congress should apply this. Let me read what Justices Ginsburg, Breyer,
Sotomayor, and Kagan wrote this week, along with Roberts and Gorsuch.
They said this:

Separately, the employers fear that complying with Title
VII's requirements in cases like ours may require some
employers to violate their religious convictions. We are also
deeply concerned with preserving the promise of the free
exercise of religion enshrined in our Constitution; that
guarantee lies at the heart of our pluralistic society.

They go on to speak of we will have a case dealing with the Religious
Freedom Restoration Act. The Equality Act, instead, says: No, never
mind, Supreme Court. I know that you are concerned about religious
freedoms--Ginsburg, Breyer, Sotomayor, Kagan, Gorsuch, Roberts--but
never mind. Congress is not concerned with religious liberty like you
are.
Come on. Let's work together. We don't want anyone to be
discriminated against--anyone. We can do this in a way that
accommodates everyone, and then we can actually work toward agreement.
To say it in the words of J.K. Rowling this past week where she
wrote, ``All I'm asking--all I want--is for similar empathy, similar
understanding, to be extended to the many millions of women whose sole
crime is wanting their concerns to be heard without receiving threats
and abuse.''
Let's work together to get equality. This bill does not do it in this
form; therefore, I object.
The PRESIDING OFFICER. Objection is heard.
The Senator from Oregon.
Mr. MERKLEY. Madam President, I am disappointed that my colleagues
have come to the floor to stand in the way of a debate, in this
esteemed Chamber, over issues of freedom, issues of opportunity, and
issues of equality that affect millions of LGBTQ Americans.
What did we hear in their conversation? My colleague from Utah says
there is no chance for debate. Has my colleague forgotten that bringing
a bill to the floor brings it to debate? Is that such a lost art in the
Senate that my colleague thinks debating a bill on the floor somehow
squelches debate? It is a mystery to me how one can make the argument
that bringing a bill to the floor kills debate.
My colleague from Oklahoma laments there is no committee action.
Well, my colleague might be reminded that for 400 days this party has
controlled whether or not there is committee action on this bill; that
it is the majority that decides whether a committee addresses the
issues before it. Is not 400 days of inaction in committee an argument
to have the conversation here as a committee of the whole? Isn't that
what we are asking for--a committee of the whole to debate these key
issues?
My colleagues have also referred to how somehow this bill affects
religious rights, and I am taken back through the history of the
conversation and dialogue about equality and opportunity in America,
how every time we seek to end discrimination, someone says: But wait--
religious rights.
Remember that this was the argument against Black and Brown Americans
having equality here in the United States of America because their
religion said they are not equal and they shouldn't be let in the door
and I should have the right to not let them in the door.
I should have the right to discriminate. Isn't that the conversation
we heard around the opportunity for women in America to play a full
role in our society, that people had a religious foundation for
discriminating between men and women? Well, I tell you that this
Nation, although imperfect, was founded on a vision that everyone is
created equal and has a full chance to participate.
We have worked over hundreds of years to get toward the goal that
every child can thrive in America, no matter their gender, no matter
the color of their skin, no matter if they are identified as gay,
lesbian, or bisexual, no matter if they are transgender. That is the
conversation we should be having here.
I feel the injury of a Senate that is no longer a Senate, where
people tremble in their seats over the idea of having a debate. What
has happened to this esteemed body that that should be the case?

[[Page S3085]]

So let us not rest. For those colleagues across the aisle who have
said that the Supreme Court shouldn't have acted this week, that it
should be the legislature that acts, and yet come to the floor and
don't argue--fail to argue--that we should, in fact, act, isn't that
obstruction of the legislative process?
I would encourage my colleagues who say that there are important
issues to be considered to go to their leadership and say ``Let's get
the committee that has this bill, the Equality Act, to start doing its
job: Hold the hearings; hold the conversation'' because to fail to
argue that it should be done in committee while you lament on the floor
that the committee hasn't acted is certainly an argument with no
integrity.
I yield the floor.
The PRESIDING OFFICER. The Senator from New Jersey.