This past June, the U.S. Supreme Court’s decision in Bostock v. Clayton County held that an employer violated Title VII when it discriminated against an applicant or employee because of their sexual orientation or gender identity. Since Bostock, circuit courts have cited the Supreme Court’s ruling in both the Title VII and Title IX contexts, creating new precedent on various issues arising under each law.

Less than one year after Bostock, the landscape of federal protections for individuals based on sexual orientation and gender identity continue to grow. President Biden began his tenure in office with an Executive Order explicitly stating that “all persons should receive equal treatment under the law, no matter their gender identity.” The Executive Order tasked the heads of governmental agencies not only with ensuring all existing regulations, policies, and programs effectively prohibit sex discrimination on the basis of gender identity and sexual orientation, but also with taking steps to actively combat such discrimination.

The U.S. House of Representatives followed course, passing the Equality Act on February 25, 2021, by a vote of 224-206. At its core, the Equality Act seeks to expand the prohibition against discrimination based on sex, sexual orientation, and gender identity further than just Title VII of the Civil Rights Act of 1964. By defining “sex” to include “sexual orientation” and “gender identity,” the Equality Act, if passed, would expand the prohibition against such sex discrimination into public accommodations and facilities, education, federal funding, housing, credit, and more. The Equality Act is currently in the Senate, where it will likely take 60 votes in favor of its passage to avoid the filibuster.

The conflict with state laws

Unlike the federal government, many states are implementing legislation that directly opposes the tenets of the Equality Act. Sports are one of the most prominent areas subject to such legislation. As of this writing, both Mississippi and Idaho have passed laws prohibiting transgender girls and women from competing in women’s sports. Instead, the laws require individuals to compete with the team or in the category of the specific sport that corresponds with their biological sex.

Idaho and Mississippi are not alone. Nearly half of the states are looking at similar bills, including Oklahoma. Pending before the Oklahoma Senate is Senate Bill 331, or the “Save Women’s Sports Act.” The current form of the bill, which targets school sports (including institutions within the Oklahoma State System of Higher Education), expressly states: “Athletic teams designated for ‘females’, ‘women’ or ‘girls’ shall not be open to students of the male sex.”

While sports seem to be the hot topic currently, pending state legislation addresses much more. For example, both Texas and South Carolina have introduced bills that, among other things, prohibit medical professionals from providing minors any gender-reassignment procedures or prescription medication necessary for transitioning. The flurry of state legislation related to gender identity signals the diametrically opposed views between many states and the federal government.

Takeaways for employers

Even with the intergovernmental conflict and the Equality Act not yet passed, employers and institutions potentially affected by such legislation should keep the following in mind:

• While sports are clearly an area that could be affected by potential passage of the Equality Act, they are only one small piece of the Act’s expansive reach. Employers and institutions with obligations based on receipt of federal funding, or those deemed a public facility, for example, should remain apprised of how the Act’s passage will affect their operations.
• Employers and institutions subject to the Equality Act must also prepare to implement the Act’s provisions, upon passage, which requires (at minimum) updating policies and procedures. Employers who have yet to update policies and procedures after Bostock should make that a top priority.
• The conflict between certain state laws and the Equality Act could lead to a few different outcomes, depending on which bills actually become law.
  • Should the Equality Act pass, affected employers and institutions should not intend to rely on the conflicting portions of state law as a means of evading liability under the Equality Act’s provisions, as the Act will likely supersede such conflicting laws under the U.S. Constitution’s Supremacy Clause.
  • Even if the Equality Act passes, affected employers and institutions must still follow state and local law where it does not conflict with the Equality Act’s requirements, or where such laws exceed the Act’s requirements.
  • Alternatively, due to the uphill battle Democratic Senators face in passing the Equality Act, affected employers and institutions must also be prepared to comply with state and local laws, such as Oklahoma SB 311, pending the Equality Act’s failure and the state laws’ passage.