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Where Will the Equality Act Go Now?

Professor Robert DeKoven

The House of Representatives voted last week to pass the Equality Act.

The act would amend the 1964 Civil Rights Act to prevent discrimination based on sexual orientation and gender identity explicitly.

California Western Professor Robert DeKoven is an expert in the field of civil rights. He was a co-author of the Human Dignity Ordinance, passed by the San Diego City Council in 1990 to prohibit discrimination based on sexual orientation in housing, employment, and lending. He appeared on San Diego’s KOGO News Radio to talk about the implications of the House’s actions.

“This doesn’t surprise me,” said Professor DeKoven. “But this has really been a non-issue in California. If you just Google California Civil Code Section 51 you’re going to see the identical language we’ve had in California for almost a decade. Anyone employed in California has probably gone through some type of sexual harassment training. It’s really been kind of a non-issue when it comes to employment here in California.”

However, up to 25 states, almost half the country, do not have similar language on their books, and when Professor DeKoven was asked how do you demonstrate in law that someone has been discriminated against because of gender identity, he responded.

“I have to point to my new favorite conservative on the Supreme Court, Justice Neil Gorsuch. I think his opinion in the Clayton case is phenomenal. He really lays it out and basically makes it very clear any time you can point to discrimination based on gender and gender stereotypes.”

To illustrate this, Vox, at the time, summed up Justice Gorsuch’s opinion in five sentences:

“In Title VII, Congress outlawed discrimination in the workplace on the basis of race, color, religion, sex, or national origin. Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. 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 the decision, exactly what Title VII forbids.”

But, continues Professor DeKoven, there really is nothing new about the terms sex discrimination.

“My very first case, 35 years ago, involved two girls who simply wanted to go to a dance together,” he recalled. “They were not lesbian, and the school said no because only opposite-sex couples could come to the dance. And we pointed out, wait a minute, the only reason they cannot go to the dance is that they’re both girls and one has to be a boy to go to the dance. That made national headlines, and the school district agreed. They didn’t even realize that was discrimination based on gender.”

In a recent article published on NPR, Danielle Kurtzleben explains the Equality Act, concluding, “The Democratic-led House passed the Equality Act in 2019 with unanimous support from Democrats (as well as support from eight Republicans), and it passed in similar fashion in the current Democratic House. The Senate is more uncertain.”

“We’ve been here before,” said Professor DeKoven. “But, I’m not holding my breath.”

Over the course of his career, Professor DeKoven has published over 600 articles dealing with civil rights and education-related matters. Read more here.