As we’ve written before, the Supreme Court decided in Bostock v. Clayton County, Ga. that sexual orientation and gender identity discrimination is prohibited under Title VII of the Civil Rights Act of 1964. Since the Bostock decision, the EEOC has launched a new resource page on sexual orientation and gender identity, which outlines the agency’s general views with respect to enforcement in these areas.

With these developments, some have questioned whether the Equality Act, which has passed the House of Representatives and awaits a vote in the Senate, would be redundant. Although there is some overlap with the Bostock decision, the Equality Act has key differences.

Some of those key differences in the Equality Act include:

  • Stating expressly that sexual orientation and gender identity are included in the definition of sex under Title VII;
  • Further defining sex as including pregnancy, childbirth, or related medical conditions, sex stereotypes, and sex characteristics including intersex traits;
  • Stating specifically that gender identity discrimination includes denying a person access to a shared facility (such as a restroom, dressing room, or locker room) that corresponds to the person’s gender identity; and
  • Clarifies that discrimination based on the sex of another person with whom the individual is (or has been) associated is prohibited.

In addition to these differences, there’s another crucial distinction: Bostock is merely case law. As such, it could be reversed or limited by future decisions of the Court. The Equality Act would specifically codify these points (and other matters, as it also has provisions addressing housing, education, health care, and other settings) as an express matter of statute.

As always, we will continue to follow this issue and provide updates on the Equality Act should it continue to advance.