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This Is How Today's SCOTUS Decision Doesn't Protect LGBTQ+ People


Title VII is a huge victory for LGBTQ+ employees and shouldn't be undermined, but the Equality Act is the big kahuna. 

In a 6-3 decision written by Neil Gorsuch, a Donald Trump appointee, the U.S. Supreme Court ruled today that Title VII of the Civil Rights Act of 1964, which bans employment discrimination based on sex, also bans employment discrimination based on sexual orientation and gender identity.

Gorsuch's pro-LGBTQ+ vote was bookended by fellow conservative Chief Justice John Roberts as well as liberal judges Ruth Bader Ginsburg, Elena Kagan, Sonia Sotomayor, and Stephen Breyer.

Meanwhile, conservative judges Samuel Alito, Brett Kavanaugh (also a Trump appointee), and Clarence Thomas all gave dissenting votes.

The ruling was in a consolidation of three cases: Bostock v. Clayton County and Zarda v. Altitude Express, both of which involved gay men who were fired from their jobs, and R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity, which involved a trans woman losing her job.

In all three cases, the plaintiffs said they lost their jobs because of their sexual orientation or gender identity.

In many ways, Title VII is a north star in federal law and gives a huge boost for the Equality Act, which, if passed, would amend existing civil rights laws to include discrimination on the basis of sexual orientation and gender identity in other sectors like housing, public accommodations, federal funding, credit, and public education.

Though today's decision was a huge leap, it is still legal under federal law for stores, restaurants, and hotels as well as federally funded programs like hospitals, colleges, and adoption agencies, to discriminate against LGBTQ+ people. It's also still legal to discriminate against trans people in restroom access. Many states prohibit such discrimination, but it is not banned nationwide.

The definition of what counts as "public accommodation" was written in the 1960s, Sharon McGowan, legal director and chief strategy officer for Lambda Legal, explained to The Advocate. It was a time when public accommodations were limited to trains, buses, hotels, and diners. In 2020, it should be a requirement for language to be expanded so that it will consider online marketplaces, like Airbnb, for example.

Today's SCOTUS decision will also certainly affect the interpretation of other civil rights laws.

For example, it will affect how federal courts interpret Title IX of the Education Amendments of 1972, which bans discrimination on the basis of sex from in education programs or financial aid; the Fair Housing Act, which prohibits discrimination on the basis of sex when renting or buying a home; and the Equal Credit Opportunity Act, which makes it unlawful for creditors to discriminate against an applicant on the basis of sex. The Equality Act, however, would amend these laws to make clear that they also ban discrimination based on sexual orientation and gender identity.

"It is so important that our community take full advantage of the momentum that this decision gives us," Shannon Minter, a trans advocate and legal director for the National Center for Lesbian Rights, told The Advocate. "This is huge. It is an extraordinary leap forward and we need to immediately be reaching out to our congressional representatives and urge them to support the Equality Act. We need to cement this victory into federal statutory law. This is a time where our community urgently needs to politically engage and to vote at the upcoming presidential election, and also to vote for local and state elections."

"Today's decision is: What does it mean to be discriminated on the basis of sex?" added McGowan. "But you need to have protections against sex discrimination in the first place for the protections to be triggered by today's decision. Many people don't realize that it's actually not illegal under federal law to discriminate against people on the basis of sex [in public accommodations], so the Equality Act would add those protections in a meaningful way."

Pennsylvania State Rep. Brian Sims told The Advocate, "While I am extremely excited about the precedent established in today's U.S. Supreme Court ruling, it is also an extremely prescient reminder that millions of LGBTQ+ Americans either still lack many basic civil rights or are subject having their civil rights put up for a popular vote. My hope is that even more members of Congress will see that the Equality Act is long overdue and will add their voices to the many legislators currently supporting the Act."

"The Equality Act will bring the civil rights of all communities that have needed the protections of civil rights laws into the 21st century," says McGowan. "It's why we have support for the Equality Act from all the traditional civil rights groups who care about the LGBTQ+ members in their communities but also want to see the protections agains race and sex discrimination expanded as well."

Additionally, with respect to programs that are funded by federal taxpayer dollars, there's a provision in the Civil Rights Act requiring dollars not to discriminate on the basis of race, color, and national origin. But there is not a comparable requirement not to discriminate on the basis of sex, so the Equality Act will add that as well. That is important considering how many state and local programs receive federal dollars.

So even with today's decision, there is still a need to address significant gaps in civil rights laws, Alphonso David, president of the Human Rights Campaign, said on a conference call with reporters Monday.

"We will continue to advocate for the Equality Act," David said, and for the election of Joe Biden as president and pro-equality majorities to both houses of Congress. The act was passed by the Democratic-majority House last year but is stalled in the Republican-controlled Senate, and Donald Trump opposes it, while Biden has pledged to make it a priority if he becomes president.

"There are still too many areas of the law where we remain vulnerable," added Sarah Warbelow, the HRC's legal director, also on the conference call.

David noted that in light of today's ruling, he hopes the Trump administration will rescind the rule it issued Friday on interpretation of Section 1557 of the Affordable Care Act. President Barack Obama's administration had issued a rule interpreting Section 1557's ban on sex discrimination to include gender identity and, when it uses sex stereotypes, discrmination based on sexual orientation.

The Trump rule takes Section 1557 back to a narrow definition of sex, making it legal to discriminate against trans people in health care and to some extent discriminate against gay, lesbian, and bisexual people, and it also eliminates Obama-era protections for people with disabilities or limited English proficiency, or for those seeking reproductive health care. David said that if the Trump administration does not rescind its rule, HRC will sue.

Several other groups have spoken out on today's decision, its importants, and its limits.

"The LGBTQ+ community is a vital part of the American economy and deserves equal treatment under the law," National LGBT Chamber of Commerce cofounders Justin Nelson and Chance Mitchell said in a statement. "[Title VII] is a step forward for LGBTQ+ rights in the United States, and reminds all of us that the protections for other minority groups, including people of color, the differently-abled, and women, must also be upheld and strengthened. It also brings national attention to many of the inequities that have kept law-abiding LGBT citizens from achieving all they can. We are now renewed in our determination to see the United States Congress next pass the Equality Act, enshrining these and other essential protections into federal law. Our economy simply does not achieve all it can unless everyone is included and given a fair shot."

McGowan noted that passing the Equality Act will also eliminate room for mischief by present and future Trump judicial appointees.

"We already know that most anti-civil rights people are trying to pack the federal courts with people who write us out of the law," McGowan said of the nearly 200 judges appointed by Trump. "There are still going to be questions that will come out of courts, so having the additional clarity of the Equality Act will be another important check against the mischief that the next generation of Trump judges may try to do through ways in which they try to exploit or misread today's decision to make it mean less than what it should be."

"If we don't win in November, we're going to continue to be living in a country run by an administration that is extremely hostile to our community that will continue to take every opportunity to undermine not just our legal rights, but our very existence," Minter expalined. "They're going after us full force. They really want to re-stigmatize LGBTQ+ identity and make it impossible for LGBTQ+ people to live safely in this country. Don't make any mistake about the fact that we are under a vicious attack, the likes of which most of us thought we would not see again in our lifetime. It's happening."

"We still have a majority of states that don't have statewide protections for LGBTQ+ people and that's also a big gap," he continued. "[Title VII] is a huge political gift, and it is up to us to make the most of it, to really recognize that moments like this don't come around very often. This is a once-in-a-lifetime opportunity to really secure lasting permanent protections that will benefit future generations of LGBTQ+ people in this country. It's on us whether we do the work now that needs to be done."

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