Amanda Andrade-Rhoades/Sipa USA via AP Images
Aimee Stephens, right, was fired from her position as a funeral director after she publicly transitioned. She passed away in October.
Progressives have heralded the Supreme Court’s decision Monday in Bostock v. Clayton County—which extended the employment protections of the 1964 Civil Rights Act to LGBTQ people—as a leap forward for queer equality.
In a 6-3 decision written by Associate Justice Neil Gorsuch and joined by Chief Justice John Roberts, the Court ruled that Title VII of the landmark civil rights legislation, which prohibits discrimination in employment “because of … sex,” includes gay and transgender people.
It’s difficult to overstate the scope of this ruling. As of Sunday, nearly four million queer Americans in 28 states could be fired, passed over for a promotion, or simply not hired because of their sexual orientation or gender identity. A day later, Gorsuch granted them the right to sue if they face discrimination at work.
As meaningful as the decision is, however, it still leaves LGBTQ Americans without cover in vast areas of life, including public accommodations (restaurants and retail stores, for example), education, or housing. To gain those protections, queer legal advocates will have to spend years litigating in federal and state courts, and ultimately pass a legislative vehicle known as the Equality Act to fill in the holes. And the Court has yet to answer the extent to which religious organizations and individuals are exempt from civil rights law.
“What [the justices] have done is allowed trans and LGBT people into the race that everybody is already running,” said Malita Picasso, a fellow at the American Civil Liberties Union’s LGBT and HIV Project. “Wherever there’s a protection against discrimination ‘because of sex’ in federal law, it’s difficult in my mind to think of a justification for not applying this same interpretation of Title VII to those antidiscrimination laws as well.”
LGBTQ-rights advocates expect to have to go to court to force the Trump administration to recognize the obvious legal ramifications of Bostock.
Indeed, Bostock invites a slew of litigation asking whether various other laws that forbid discrimination “because of sex” apply to LGBTQ Americans as well. This includes Title IX of the Education Amendments Act of 1972, which prohibits discrimination on account of sex in education, and Section 1557 of the Affordable Care Act, which bars such discrimination in health care.
“There’s nothing in other contexts that would make anti-LGBT discrimination reasonable or logical,” said Jenny Pizer, senior counsel at Lambda Legal. “The analysis coming from the Supreme Court about the meaning of ‘because of sex’ in federal civil rights language should apply in all these other contexts.”
Under a normal administration, the Department of Health and Human Services would immediately reverse its recently announced rule rescinding protections for LGBTQ people in health care, knowing that it would be likely to be overturned by the courts. The Education Department, which threw out Obama-era protections for transgender students in education in 2017, would also reverse course. (The Department of Housing and Urban Development also just announced a rule banning trans people from single-sex homeless shelters.) All these policies rely on what the Court just ruled is a misinterpretation of the phrase “because of sex.” Nevertheless, LGBTQ-rights advocates expect to have to go to court to force the Trump administration to recognize the obvious legal ramifications of Bostock.
One such case is already underway in Connecticut, where three female high school students filed a complaint with the Department of Education over the district’s policy of allowing transgender students to compete on sports teams that correspond with their gender identity. In late May, the DOE’s Office for Civil Rights, which adjudicates such claims, ruled that the policy violated Title IX’s prohibition on sex discrimination.
“I don’t see any way the Department of Education’s decision stands in light of this,” said Chase Strangio, staff attorney with the ACLU, who represents the two transgender athletes on the other side of this case.
The ACLU has another lawsuit against the state of Idaho, where Republican Gov. Brad Little signed HB 500, which prohibits transgender students from joining sports teams that correspond to their gender identity. This challenge too will surely prevail in light of Monday’s ruling.
While Bostock will allow LGBTQ rights to piggyback onto women’s rights wherever the phrase “because of sex” appears in federal law, this still leaves queer people open to discrimination in housing and public accommodations, which covers any place that offers goods and services to the general public. This includes wedding vendors, who have been at the core of antidiscrimination lawsuits since the Supreme Court recognized same-sex marriage in 2015. Neither the Civil Rights Act nor the Americans with Disabilities Act—the two pieces of legislation that constitute the bulk of federal public-accommodations law—forbid discrimination on the basis of sex.
“Many important federal civil rights laws don’t have a prohibition on sex discrimination, which means Bostock would not apply,” Pizer said. “The Equality Act fills in those important gaps.”
The Equality Act, which passed the House of Representatives in 2015 but died upon arrival in Mitch McConnell’s Senate, would guarantee LGBTQ people nondiscrimination protections not only in public accommodations but in housing, education, federal funding, and credit. It also expands the definition of “public accommodation” to include things like online retail, which did not exist at the time the Civil Rights Act was passed.
“Many parts of public life and goods and services are not covered under current federal law,” Pizer said. “The Equality Act brings public-accommodations law up to a modern standard.”
Queer-rights advocates won’t be able to pass any version of the Equality Act so long as Trump remains in the White House and Republicans control the Senate. But given the overwhelming public support for LGBTQ nondiscrimination—according to polling from the nonpartisan Public Religion Research Institute, 70 percent of Americans support the provisions of the Equality Act—it remains a matter of time before the legislature acts to ensure full de jure equality for queer people.
Until then, LGBTQ civil rights advocates can also sue at the state level for protections not covered in federal law. While federal statutes governing nondiscrimination in public accommodations generally exclude discrimination on the basis of sex, a majority of public-accommodations laws in the states do, according to William Eskridge, a professor at Yale Law School who specializes in laws pertaining to sexual and gender minorities.
“The Court’s decision in Bostock is only going to fuel activity in the states, which have a broader array of nondiscrimination laws,” Eskridge said.
The one area in which the Trump administration’s stacking of the judiciary with right-wing judges may still bear fruit is when it comes to religious exemptions from civil rights law. In 2018’s Masterpiece Cakeshop v. Colorado Civil Rights Commission, a majority of the justices on the Supreme Court, including Gorsuch, signaled a willingness to exclude religious organizations from the constraints of nondiscrimination law. In Masterpiece Cakeshop, the Court ruled against the Colorado Civil Rights Commission, which had penalized a baker who refused to make a cake for a gay couple’s wedding.
The justices stopped short of declaring all religious wedding vendors exempt from nondiscrimination laws; because the Colorado Civil Rights Commission had been so flagrant in discriminating against the baker, former Associate Justice Anthony Kennedy ruled in the plaintiff's favor on those grounds, rather than addressing the underlying legal question at hand.
But there is little reason to think the Court’s right wing will so constrain itself now that Kennedy is off the bench and Associate Justice Brett Kavanaugh has been confirmed. In May, the justices heard oral arguments in a pair of cases involving the “ministerial exception,” which exempts religious organizations from nondiscrimination laws when it comes to hiring “ministers.” The case provides an opportunity for the Court’s five conservative jurists to expand who counts as a minister.
The Supreme Court also agreed in February to hear Fulton v. City of Philadelphia, which asks whether religious adoption agencies that contract with the city of Philadelphia have a right to discriminate against same-sex couples. Here, too, the conservative justices could blow the lid off current nondiscrimination protections for queer people, Bostock notwithstanding.
Monday’s decision turned Gorsuch into a sympathetic figure for many progressives; the Trump appointee may soon vindicate the Republicans who stole President Barack Obama’s judicial appointment.
