It has been a little over three months since the landmark ruling in Bostock v. Clayton County, a U.S. Supreme Court civil rights case in which the Court held that Title VII of the Civil Rights Act of 1964 protects employees against discrimination because of their sexual orientation or gender identity.
This case has given much needed federal employment protections to the queer community. Prior to this ruling and, according to one study, despite at least 8.1 million workers identifying as LGBTQ+, the nondiscrimination statutes in most states did not explicitly include sexual orientation and gender identity as protected characteristics for the LGBTQ population.
No longer can any gay or trans person, no matter the state or territory in which they are employed, be fired from their job(s) because of whom they love or how they identify.
“The benefit of the decision is a validation of not only people’s right to be free from discrimination, but for the right to exist,” says Wesley Bizzell, president of the National LGBT Bar Association, Senior Assistant General Counsel and Managing Director of Political Law & Ethics Programs at Altria in the Government Affairs function, and leader of the company’s political law and ethics compliance programs.
Beyond employment law, this landmark ruling may also serve as a sea change in other areas of law and policy for the queer community, including public housing, healthcare, the Equal Credit Opportunity Act (which prohibits sex discrimination by creditors), and Title IX of the Education Amendments Act of 1972 (a statute prohibiting sex discrimination in education that was recently used against transgender student athletes).
But first, let’s look at the current administration’s policy on LGBTQ+ civil rights.
Trump administration assault on LGBTQ+ community
LGBTQ+ civil rights have taken a beating under the current Trump administration. While the President at one time claimed to be a strong supporter of gay persons, recall his speech at the Republican National Convention when he accepted his party’s nomination on July 21, 2016:
“Only weeks ago, in Orlando, Florida, 49 wonderful Americans were savagely murdered by an Islamic terrorist. This time the terrorist targeted our LGBT community. As your president, I will do everything in my power to protect our LGBT citizens from the violence and oppression of a hateful foreign ideology,” Trump said.
That has surely changed as the Trump Administration went on the offensive against queer-identifying people from the moment he took office, erasing LGBTQ+ content and references from the White House, U.S. Department of State, and U.S. Department of Labor websites.
Hope for change amid a backlash
The Trump administration’s anti-LGBTQ attacks are symptomatic of a larger backlash against the queer community. The Southern Poverty Law Center reported that number of anti-LGBTQ hate groups soared 43% last year. And even in historically inclusive settings like collegiate athletics, states such as Idaho have passed or introduced laws that ban transgender women from competing in all-women sports teams sponsored by public schools, colleges, and universities.
Bizzell says we will continue to see such backlash, as it is inevitable in the fight for equality. “Quite frankly, it is shameful, but LGBTQ people are being used to excite a base of voters. This dates back to Anita Bryant in Florida in the 1970s and George W. Bush who used it to turn out the vote on marriage issues in the early 2000s,” he explains.
Yet despite the backlash, the recent Supreme Court ruling offers a semblance of optimism. In a written opinion, Supreme Court Justice Neil Gorsuch, a Trump appointee, emphasized that the decision was limited to Title VII of the Civil Rights Act. Thus, while the decision itself won’t immediately change discriminatory policies unrelated to employment law, it effectively sets a precedent making it far more difficult to exclude gay and transgender and non-binary people from other laws that prohibit discrimination based on sex.
Hundreds of discrimination claims by LGBTQ+ litigants bolstered
Although there is some argument over whether the ruling impacts the armed services, hundreds of cases are being bolstered by this decision, including military members suing the Trump administration over its transgender service ban. Other broad and discriminatory actions by the administration are also in danger, including multiple areas of policy surrounding education, housing, employment, and health care.
Why? Because in each of these instances Trump’s administration attempted to narrow the legal definition of sex discrimination by excluding protections for transgender people. With the Bostock decision, the door is now open for change. And many have argued that it is particularly cruel to attempt to block transgender and non-binary persons from healthcare services during a global pandemic.
The Human Rights Campaign (HRC) filed a lawsuit challenging the Trump administration’s decision to roll back critical civil rights protections of the Affordable Care Act (ACA) as, according to Lambda Legal, 70% of transgender and gender non-conforming people reported experiencing discrimination by health care providers.
States following the trend towards equality despite backlash
Despite a few setbacks, Bizzell remains optimistic that we will continue to march towards progress and see change in public accommodations. He noted that the recent comprehensive non-discrimination measure passed in Virginia this year was a step forward for full equality for LGBTQ+ persons. Bizzell, who advocated for the law, noted that Virginia is the first Southern state to pass such comprehensive reform.
“We will continue to see more [progress],” he surmises, “as people realize that treating LGBTQ+ individuals equally doesn’t upset the time-space continuum, nor does it cause us to fall into a black hole of societal lawlessness and immorality, as some worry. Legislatures will have more of the political might and will to provide these protections.”