LGBTQ campaigners are optimistic that Monday’s historic 6-3 decision at the Supreme Court, making it illegal to fire people because of their sexual orientation or gender identity, will have a significant impact on other cases and legislation with LGBTQ discrimination at their heart.
Those include the Trump administration’s ban on trans people serving in the military and a new rule, announced last Friday by Roger Severino, director of the Office for Civil Rights at the Department of Health and Human Services (HHS), to strip transgender health-care protections from Section 1557 of the Affordable Care Act (ACA).
The court found Monday that Title VII of the 1964 Civil Rights Act did protect LGBTQ people. That “sex discrimination” has now been legally deemed by the highest court in the land to include discrimination on the grounds of sexual orientation and gender identity will, advocates believe, have an impact on cases currently in the courts, as well as attempts to introduce anti-LGBTQ legislation in cities, states, and federally.
It could also act as an impetus, they say, to finally pass the Equality Act, which would enshrine anti-discrimination in legislation.
Sharon McGowan, legal director of LGBTQ advocacy organization Lambda Legal, told The Daily Beast that “any decision from the Supreme Court has ripples. Title VII itself is often described as ‘the North star’ when lower courts look to decisions around fair housing and real credit acts, or Title IX.”
How the Supreme Court answered why sex discrimination includes sexual orientation and gender identity will inform how the same question is responded to surrounding other statutes that have sex discrimination protections, said McGowan.
Alphonso David, president of the Human Rights Campaign, told The Daily Beast: “At its core one of the principles that the court’s decision highlights is that we need to seek to vindicate the legislative intent of statutes, rather than their expected application.”
The court, said David, rejected the employers’ and Trump administration’s contention that there was no expectation in 1964 that Title VII applied to LGBTQ people. “LGBTQ people filed lawsuits in the 1970s. Most importantly, the court talked legislative intent, which should be broadly applied and interpreted,” said David.
The same, said David, applies to the legislative intent of President Obama’s ACA, “which was aimed at providing health care to as many people as possible. It’s why it contains anti-discrimination provisions in the legislation. The Trump administration is thumbing its nose at that legislation, and why we are planning on suing them if they don’t extend the regulations.”
Rose Saxe, deputy director of the ACLU’s LGBT and HIV Project, said: “Federal law also prohibits sex discrimination in housing, health care, education, and credit. The reasoning from this Supreme Court decision should mean that it is also unlawful to discriminate against LGBTQ people in those contexts. With respect to health care, these protections in law override the anti-trans regulations recently issued by the Trump administration under Section 1557 of the Affordable Care Act.”
The ACLU helped shepherd two of the SCOTUS cases of discrimination through to successful completion, of transgender woman Aimee Stephens and gay man Donald Zarda, both deceased.
The third case, belonging to the only surviving member of the trio, Gerald Bostock, was run by Bostock’s lawyers at Buckley Beal in Atlanta. The historic ruling, written by Justice Neil Gorsuch, carries Bostock’s name.
In his first interview after the decision was announced, Bostock told The Daily Beast how “elated” he was but also that he was determined to fight on—both in his own case, which now returns to trial court in Atlanta, and in the wider campaign for full equality.
The untested question is how courts will take on the SCOTUS ruling. Title VII applies to religiously affiliated employers, emphasized Saxe, with some exemptions, including for ministers or other individuals whose job involves teaching or leading the faith.
However, the SCOTUS decision, said Saxe, did not protect LGBTQ people “in some important areas of life, such as in businesses open to the public, and federally funded programs.”
McGowan imagines LGBTQ advocates all over the country using the momentous ruling in whatever effective way they can. The Supreme Court victory should give added impetus to the passing of the Equality Act, she added, especially as it extends LGBTQ protections to such areas as public accommodations, where there are no sex discrimination provisions.
“Part of the clarity that the Supreme Court provides is not only the ability to provide redress after discrimination happens, but provides a message at the front end to prevent discrimination in the first place,” said McGowan.
“Importantly, Title IX looks to Title VII, and so the decision will be a powerful tool in vindicating the rights of LGBTQ students denied opportunity in housing, credit, and other spaces. This will help protect trans students, and LGB and queer kids who are figuring out how to plead their cases in the right way. Now we can move on to root out discrimination; the question of whether it is discrimination has been settled.”
In a statement, GLSEN, which works to create safe and inclusive schools for all, said that in 2017 its executive director, Eliza Byard, and colleagues met with Secretary of Education Betsy DeVos in the wake of her revocation of the U.S. Department of Education’s 2016 guidance asserting transgender students’ rights under Title IX.
“In March of 2017, Secretary DeVos told me that she was waiting for the courts to rule clearly before she would protect transgender students as they deserve,” Byard said in a statement. “The Supreme Court couldn’t have been more clear, ruling that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
Byard said: “Secretary DeVos must immediately reverse her attacks on transgender students’ rights, which began with her very first official actions in 2017. Now she can no longer hide behind the claim of waiting for the courts. Trans girls are girls. Trans boys are boys. And the law protects them from discrimination ‘on the basis of sex.’ Like all children, they deserve to learn and grow free from fear and in community with their peers.”
Dale Melchert, staff attorney at the Transgender Law Center (TLC), said the ruling was “a tremendous victory” and that the organization was taking “a moment to celebrate” while also continuing to mourn the two recent murders of Black trans women, Riah Milton and Dominique “Rem’Mie” Fells.
“We are glad the court got it right and followed decades of precedent,” said Melchert. “It’s tremendous we have this decision to rely on, rather than having to depend on whatever jurisdiction you find yourselves in. But we have our work cut out for us still. As long as there are Black trans women being killed, we still have our work to do.” (In March, TLC launched its Trans Agenda for Liberation.)
The TLC had submitted an amicus brief, composed of trans people’s stories of employment discrimination. While the court cemented trans rights, “we never looked to the court to create our rights,” said Melchert. “We recognize all our rights were gained from the struggle off the backs of trans women of color, who were the initiators of Stonewall. In many ways they were the foundation and impetus for our movement.”
“We know that the Trump administration is packing the federal courts with a number of right-wing, anti-civil rights, anti-LGBTQ extremists who we can expect to twist themselves into knots to make these decisions mean as little as possible,” said McGowan. “But just on the basis of the analysis itself, and the 6-3 decision written by the string textualists of the court, this should go a long way to resolving the questions working their way through the federal and lower courts.”
McGowan said those courts had been open to interpreting “sex” to include gender identity. What the SCOTUS decision helped clarify was that it also embraced sexual orientation.
Lambda Legal is currently overseeing one case that SCOTUS’ decision may help resolve: health-care sales specialist Mark Horton’s case—currently stalled in the Eighth Circuit—against Midwest Geriatric Management, alleging discrimination on the basis of his sexual orientation. Horton lived in Illinois, which has anti-LGBTQ discrimination provisions, but worked in Missouri, which does not.
“Pipeline cases like this will move forward in the express lane, because the underlying question of whether the statute covers this form of discrimination has been answered by the Supreme Court,” said McGowan. “Monday’s decision takes away any doubt about what sex discrimination means. It is also a rebuke of attempts by the courts and politicians to override what the law means.”
HRC intends to use the SCOTUS ruling as it fights the proposed ACA rule change, said David, as well as any other federal statutes the administration and anti-equality advocates target in their attempts to “strip protections from marginalized communities,” such as the Trump administration recently submitting a brief to the Supreme Court arguing that religiously affiliated adoption agencies should be able to refuse child placement to LGBTQ adoptive parents.
The proposed ACA rule change had, said Melchert, “absolutely hurt to have such targeted attempts to roll back protections and target a community that has been repeatedly targeted by the Trump administration—especially on the anniversary of Pulse and in the wake of the deaths of two black trans women last week.”
The TLC would be using the SCOTUS decision in upcoming cases—including a collective effort to scupper the HHS rule change—“absolutely, without a doubt,” said Melchert.
McGowan said she would “love if Roger Severino and the rest of the folks at HHS” would look at the ruling and retract the anti-trans rule change before it progresses any further, but doubt they will. “This has never been about them engaging in meaningful analysis about what the law provides.
“This has been about a concerted effort to use every tool in their arsenal to try and diminish protections for LGBTQ people, and sow confusion and encourage those who want to discriminate by doing things like this as part of a longer campaign to get us back into the closet and relegate us to second-tier status.
“Opponents of LGBTQ equality never relent in their desire to rile up their own base. We continue to try to ensure federal, state, and local government follow the letter of the law.”
HRC will also be looking to the ruling to support legislation tailor-made to protect people from discrimination.“I think Monday’s decision carries a very positive message for LGBTQ equality,” said David. “In this case the employers effectively argued they should be able to discriminate against LGBTQ people. The decision is a clear signal to other employers and legislators seeking to attack LGBTQ people that federal law protects them.”
David did “not read too much” into who voted for which way in Monday’s decision. “What I take away from it is the rule of law prevailed, and that Justices Gorsuch and Roberts will protect the rule of law, honoring the 20 or so years of case law leading up to this. I hope, moving forward, the court continues to respect the rule of law to protect marginalized communities.”