ABOVE: Rep. David Cicilline (D-R.I.) will become the most senior openly gay member of the U.S. House as Democrats take the majority this week. (Washington Blade file photo by Michael Key)
Rep. David Cicilline (D-R.I.) will become the most senior openly gay member of the U.S. House as Democrats take the majority this week, but he’s more excited about the growing ranks of openly LGB people who will serve in Congress alongside him and finally being able to move long-awaited legislation to ban anti-LGBT discrimination.
Asked by the Blade during an interview in his office Dec. 20 about his new distinction as the most senior out gay member of the House with outgoing Rep. Jared Polis leaving to become governor of Colorado, Cicilline said he’s “very proud” the chamber will have a net gain of two out LGB members in the 116th Congress and talked about the Equality Act.
“It’s a great privilege to be a part of that group,” Cicilline said. “I think this year will be an opportunity for us to finally move forward on the Equality Act, which I think is the single most important piece of legislation to our community in terms of, once and for all, prohibiting discrimination against members of the LGBT community as a matter of federal law. And so, I’m honored to be the senior most member and really excited about the new colleagues that are joining this caucus.”
(Although Cicilline is now the most senior openly gay person in the House, he’s not the most senior openly gay person in Congress. That distinction belongs to Sen. Tammy Baldwin of Wisconsin who was first elected to the House in 1998, but moved to the Senate and won re-election last year.)
The Equality Act would amend the Civil Rights Act of 1964 and the Fair Housing Act to ban anti-LGBT discrimination in employment, housing, public accommodations, jury service, education, federal programs and credit.
The bill also seeks to update federal law to include sex in the list of protected classes in public accommodation in addition to expanding the definition of public accommodations to include retail stores, banks, transportation services and health care services. Further, the Equality Act would establish that the Religious Freedom Restoration Act — a 1994 law aimed at protecting religious liberty — can’t be used to enable anti-LGBT discrimination.
Although the ongoing government shutdown will likely be the first priority for the Democratic majority, Nancy Pelosi said advancing the Equality Act would be a personal goal and the legislation will receive a bill number between 2 and 10.
And the lawmaker who’ll spearhead that legislation is Cicilline, who introduced the comprehensive non-discrimination measure in the previous two Congresses with Sen. Jeff Merkley (D-Ore.). For the first time, Democrats will introduce the Equality Act while controlling at least one chamber of Congress, which presents an opportunity for a floor vote on the legislation.
Cicilline said the timing for introduction for the Equality Act in the 116th Congress is yet to be determined, although it’ll definitely coincide with Merkley’s introduction of the legislation in the Senate. The Rhode Island Democrat said conversations with Democratic leadership on the timing for the legislation haven’t yet taken place “other than knowing we’re moving forward on it.”
“I know that the incoming speaker had made public statements about our intention to make the Equality Act a priority, which I’m delighted to hear,” Cicilline said.
Cicilline said he expects committees with jurisdiction over the Equality Act — such as the Judiciary Committee and the Education & the Workforce Committee — to hold hearings on the legislation before moving forward in accordance with regular order before the floor vote.
The next iteration of the Equality Act will have “pretty much” the same language as its previous iterations, Cicilline said. He added every time he reintroduces a piece of legislation “it’s another occasion to kind of look at the bill and see if there’s anything to change.”
“So we’ll go through that process, but it’ll be essentially the same bill,” Cicilline added.
Asked whether he had anything in mind that would make the Equality Act not the same in the 116th Congress, Cicilline replied, “No.”
In the previous Congress, all members of the Democratic caucus were co-sponsors of the legislation, except for two lawmakers: Rep. Dan Lipinski (D-Ill.), whom LGBT groups sought (unsuccessfully) to oust during the Democratic primary last year for not backing LGBT rights, and Rep. Marcia Fudge (D-Ohio).
Cicilline said he expects the same level of support in the Democratic caucus as it takes the majority in the 116th Congress.
“I’ve talked to a number of my new colleagues about the Equality Act, a number of them have already contacted me about wanting to be co-sponsor, so I expect will have the same kind of overwhelming Democratic support,” Cicilline said. “Hopefully, every Democrat will be a co-sponsor.”
Republicans however, are a different story. Only two Republicans co-sponsored the Equality Act in the last Congress. One of them is Rep. Ileana Ros-Lehtinen (R-Fla.), known for being the most pro-LGBT House Republican, who retired after 24 years in Congress. The other Republican co-sponsor, Rep. Scott Taylor (R-Va.), was voted out of office in the Democratic “blue” wave.
Cicilline said he’s had conversations on the Republican side of the aisle about the Equality Act and is “going to continue those because I want to do everything I had to make it bipartisan.
“I think it’ll be really important to have some of our Republican colleagues, but I don’t have any yet that are committed to it,” Cicilline added.
Asked whether there were any Republican possibilities he could name, Cicilline demurred.
“If I name them, they become less possible,” Cicilline said. “I’m going to explore with as many Republican colleagues as I can and get them on board.”
But the Equality Act also faces concerns among civil rights supporters. Many civil rights groups, including the Leadership Council on Civil & Human Rights, have said they support the goals of the Equality Act, but have stopped short of a full endorsement of the bill.
Fudge, who was considering a leadership challenge to Pelosi after Democrats won their majority, has expressed concerns about opening the Civil Rights Act to amendments on the House floor, where the landmark legislation could be watered down.
“What I opposed was including the Equality Act in the current Civil Rights Act,” Fudge said in a statement. “The Civil Rights Act is over 50 years old and isn’t even adequate to protect the people currently in it. I want us to do a new and modern civil rights bill that protects the LGBTQ community and updates protections for this era. I do not believe it is appropriate to open and relitigate the current Civil Rights Act.”
Cicilline said the Leadership Council on Civil & Human Rights made “a very strong statement of support of equality for our community” in regards to the Equality Act. As for Fudge’s concerns, Cicilline said he understands them, but doesn’t share them.
“I understand the argument advanced by Congresswoman Fudge,” Cicilline said. “I disagree with it. I think that we can’t have full equality by having a separate but equal civil rights bill.”
Cicilline said barring discrimination against LGBT people by amending the Civil Rights Act of 1964 has significant benefits that a different bill couldn’t accomplish. Among these benefits is applying more than 50 years of jurisprudence of the landmark law to anti-LGBT discrimination.
“Really the only way to do it is to include it in the existing civil rights architecture, so you have the benefit of all that jurisprudence whenever exemptions exist, whenever other kinds of tests need to be applied,” Cicilline said. “There’s significant jurisprudence on it, and so it saves kind of litigating all these things again. So, I think there’s real value legally and real value in terms of making a strong statement that we need for equality.”
Cicilline pointed out that every other member of the Congressional Black Caucus was a co-sponsor of the Equality Act, including civil rights icon Rep. John Lewis (D-Ga.), whom Cicilline said was “one of the early champions of the bill, and he’s a respected leader in that community.”
After the Equality Act passes the House, the game changes. Instead of a new Democratic majority, the U.S. Senate under Senate Majority Leader Mitch McConnell (R-Ky.) has an expanded Republican majority. Moreover, President Trump would need to sign any legislation for it to become law.
But Cicilline denied passage of the Equality Act in the House is the end of the story. In fact, he called it the “beginning of the story” because the campaign to pressure Republicans to support LGBT rights will begin.
“We will work hard to get it passed in the Senate,” Cicilline said. “I think this is one where it’s very critical for outside groups to play a role in identifying who are the key senators who are at least willing to consider supporting the Equality Act and that they hear from constituents in their districts from the LGBT community and allies about the importance of this, and we begin a real campaign to persuade them to do it.”
Referencing polls showing the American public opposes discrimination against LGBT people, Cicilline said the issue “is one where the American people are way ahead of us overwhelmingly.”
“I think part of our challenge is to catch up to where the American people are,” Cicilline said. “They understand fundamentally that discrimination is wrong. It’s antithetical to the fabric that is this country. And when you give them the examples of the kind of discrimination we’re talking about they’re opposed to it. So I think this is about kind of Congress basically catching up to where the rest of the country is and making certain that qualified people cannot be fired from their jobs, cannot be kicked out of housing.”
Cicilline also wouldn’t rule out Trump supporting the Equality Act, recalling an interview Trump gave in 2000 to The Advocate in which he said he likes the idea of adding sexual orientation to the Civil Rights Act of 1964. Trump hasn’t said whether he still holds that position.
“It’s hard to know that he’ll continue to maintain that position, especially when you think of the ways the administration has behaved, but if we bill pass the bill soon, that’s our next effort,” Cicilline said.
The third branch of the U.S. government may also have a chance to weigh in on anti-LGBT discrimination. Two petitions are pending before the Supreme Court calling on justices to affirm anti-gay discrimination amounts to sex discrimination under current law, and another petition seeks clarification on whether anti-trans discrimination is sex discrimination.
For decades, courts have more or less consistently found anti-trans discrimination is sex discrimination. Court rulings finding anti-gay discrimination is sex discrimination are a relatively new development, but a growing number of them are reaching that conclusion.
In the event the Supreme Court decides to take up these cases, Cicilline said either way justices would come down, it wouldn’t change the need for the Equality Act.
“It’s one tiny piece of this bill,” Cicilline said. “So it would answer that question, but if it was answered and said it is covered that would be great because we have some partial coverage, partial protection against discrimination for one part of the community but it doesn’t solve the problem and it would still, I think, wouldn’t in any way undermine the necessity of passing and enacting the Equality Act. If they rule against it, then it just affirms the emergency of passing the Equality Act. So, I don’t know that it has a big impact.”
The Equality Act isn’t the only LGBT issue Cicilline has spearheaded. Last year, when the nation was horrified over the Trump administration’s “zero tolerance” immigration policy that separated asylum-seekers from their children, Cicilline pointed out the LGBTQ youth in immigration detention facilities have no legal protections.
Cicilline said “there may, in fact, be some implications of the Equality Act” in the context of immigration detention in terms of if there were educational facilities or it was considered a public accommodation.
“They did not have in place any protocols or systems,” Cicilline said. “They acknowledged that when issues arise related to the sexual orientation or gender identity of youth they deal with it on a case-by-case basis, whatever that means. But it was clear there aren’t established protocols that protect this vulnerable population. This is one of many, many shortcoming in the current immigration detention proceedings.”
The treatment of LGBT youth in immigration detention facilities, Cicilline said, will be the subject of congressional oversight with the House under Democratic control.
“I think you’ll see a lot of oversight hearings on this when we take the majority in January,” Cicilline said.
That isn’t the only LGBT issue facing expected congressional oversight for Cicilline, who identified other areas he predicts will come under scrutiny.
“The same things that exist in the immigration system context exist in the criminal justice system, so protections are in place for the people in our community who are incarcerated,” Cicilline said. “There’s lots of work that needs to be done in terms of protecting students, particularly with Betsy DeVos’ rollback of some key protections.”
One LGBT issue that has reemerged is reports of anti-gay human rights abuses, including the extrajudicial killing of gay people in concentration camps, in the Russian semi-autonomous Republic of Chechnya. Last month, the State Department promoted a report from the Organization for Security for Cooperation in Europe corroborating those reports and finding Russia “appears to support the perpetrators rather than the victims.”
Cicilline said the report “confirmed what we suspected from the beginning” and found an earlier Russian investigation that found no abuse “was not legitimate.”
“We have attempted in a variety of different ways to raise that issue both by introducing and passing a resolution in Congress condemning that action as well as leading a letter to the president and secretary of state urging him to raise this issue with — abuse of LGBT people in Chechnya — with the Russian officials,” Cicilline said. “So this confirms what we have attempted to do and sadly is just another example of people from our community suffering violence and discrimination and brutality and really unforgiveable circumstances.”
The Trump administration has sanctioned Chechen leader Ramzan Kadyrov under the Magnitsky Act and supported the OSCE report, but Trump himself has said nothing about the abuses, unlike other world leaders such as Justin Trudeau, Theresa May, Emmanuel Macron and Angela Merkel.
Asked what the Trump administration or new House majority should do, Cicilline said “we just have to continue to press for human rights,” raising the possibility of legislation and sanctions.
“I think there’s some legislative stuff we can do,” Cicilline said. “I think we should continue to bring attention to these issues, continue to express condemnation when appropriate with sanctions, etc. So I think there’s a whole range of options available to us, but raising our voices and making sure that America continues to be a country that speaks out against violence against the LGBT community is really important.”
Asked what would need to happen to trigger sanctions, Cicilline said “we have current mechanisms,” but other proposals are in the works through the legislative process.
With a Democratic majority taking control of the House, Cicilline said the distinction between Democrats and Republicans on LGBT rights will exemplify the new tone in Washington.
“I think the contrast is really stark and, I think people have a right to expect that the Democrats who take the House back that LGBT equality and protecting the LGBT community from discrimination will be an important priority for us and, I think, the community should be excited about having at least one chamber that fundamentally respects who we are and is committed to fighting for our equality,” Cicilline said.
Although the House is just one chamber of Congress and Trump still occupies the White House, Cicilline said the distinction between Democrats and Republicans on LGBT rights will shine a light for the American public in time for the 2020 election.
“So this is a big change and we’re either going to get the Equality Act passed in the Senate after it passes the House and have equality, or we’re not,” Cicilline said. “And we’re going to be able to demonstrate who stopped our fight for equality, and those people will be on the ballot in two years.”
Cicilline added, “Our community will work to elect people who do support equality, so this is an important one, but the work isn’t done, so we got a lot of work ahead of us. Fights for equality are never easy, even though they seem obvious to us.”
