The Supreme Court’s landmark ruling in Bostock v. Clayton County, Georgia — which was widely praised by LGBTQ advocates but condemned by social conservatives — will likely have broad ramifications that go far beyond employment protections, according to several legal experts.
In the 6-3 decision last Monday regarding the scope of “employment discrimination based on … sex,” which is banned under Title VII of the Civil Rights Act of 1964, the high court stated that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
“This ruling is every bit as significant, if not more so, than the marriage equality decision.”
Kristen Browde, National Trans Bar Association
“In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee,” the ruling, written by Justice Neil Gorsuch, an appointee of President Donald Trump, stated. “We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law.”
Kristen Browde, co-chair of the National Trans Bar Association and a Democratic candidate for the New York State Assembly, was among those who stressed the impact of the Bostock ruling.
“This ruling is every bit as significant, if not more so, than the marriage equality decision,” she said, referring to 2015’s landmark Obergefell v. Hodges decision, which made same-sex marriage legal across the United States.
The Bostock ruling touched on three LGBTQ employment cases: two dealing with sexual orientation and one focused on gender identity. In a surprise to many, the majority opinion was written by Gorsuch, a conservative whose 2017 nomination by President Donald Trump alarmed many LGBTQ advocates.
Anthony Kreis, an assistant professor at Georgia State College of Law, called the opinion a “full victory” for LGBTQ advocates and said it was “straightforward,” noting that Gorsuch stayed true to his reputation as a textualist, basing his analysis on the plain text of the statute rather than legislative intent.
“There is no hedging,” he said of the ruling. “What constitutes sex discrimination is now an open and shut case.”
Kreis noted that the sexual orientation and gender identity cases could have been decided separately, but in writing a single opinion the Supreme Court treated the LGBTQ community as a cohesive entity, with the rights of gay and transgender people “bound together in a way they have not been formally bound.”
Jennifer Levi, an attorney with GLBTQ Legal Advocates and Defenders, or GLAD, said the Bostock ruling — the first high court decision to deal directly with transgender rights — will have “broad implications” that will have an impact on “housing, education, credit, health care and beyond that as well.”
Justice Samuel Alito, whose dissent in the Bostock case ran more than 100 pages, appears to agree with Levi.
“What the Court has done today — interpreting discrimination because of ‘sex’ to encompass discrimination because of sexual orientation or gender identity — is virtually certain to have far-reaching consequences,” he wrote. “Over 100 federal statutes prohibit discrimination because of sex.”
The “potential consequences” of the “radical decision,” according to Alito, include “women who have been victimized by sexual assault …seeing an unclothed person with the anatomy of a male” in a bathroom and subsequently suffering “serious psychological harm,” as well as a religious school having to employ a teacher who is in a same-sex relationship or who has undergone sex reassignment surgery.
‘Recourse at the federal level’
Until now, lesbian, gay, bisexual, transgender and queer employees had to rely on a patchwork of state nondiscrimination laws that include sexual orientation and gender identity, along with a smattering of federal court rulings in favor of gay and transgender plaintiffs.
Last week’s ruling means that LGBTQ people who live in one of the 25 states that offer no explicit protections against workplace discrimination based on sexual orientation and gender identity can file suits in federal court with more hope of success.
“What this does is give those individuals recourse at the federal level,” Kreis said.
“There is a possibility that while the court with one hand extends statutory protections to LGBT people, it might with the other hand gut those same protections by expanding religious freedom defenses.”
Joshua Block, ACLU
However, Title VII only covers workplaces with 15 employees or more, meaning some LGBTQ workers could still be unprotected.
Here, there is hope that state courts will interpret their existing sex nondiscrimination laws in a way that is consistent with the Supreme Court’s Bostock decision. For example, a lesbian employee in Indiana who is fired from a company of 10 people due to her sexual orientation could seek redress only in state court. She would have to ask the state court to construe Indiana law consistent with federal law.
As a result of the Bostock ruling, state courts, such as those in Michigan and Pennsylvania, Kreis noted, might expand application of their existing nondiscrimination laws. But this is likely to vary by state, he added.
“I don’t see the Texas Supreme Court following the Bostock decision,” he said.
Gorsuch’s majority opinion — which references the 1993 Religious Freedom Restoration Act (RFRA), a federal law that prohibits the government from “substantially burdening a person’s exercise of religion” — raises the question of employers’ ability to claim religious exceptions to their hiring practices.
“Because RFRA operates as a kind of super statute, displacing the normal operation of other federal laws, it might supersede Title VII’s commands in appropriate cases,” Gorsuch wrote. “But how these doctrines protecting religious liberty interact with Title VII are questions for future cases.”
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Kreis said it is unclear the extent to which the religious freedom act applies to Title VII, which already contains an exception for religious organizations, because the act applies only to government action that places an undue burden on the exercise of religion. However, if courts were to find that the act applies, because sex and sexual orientation are now bound in law, the court might have to say that religious objectors could discriminate against women well as LGBTQ people. Kreis anticipates a Democratic Congress may attempt to disambiguate the law by exempting civil rights law from the religious freedom act.
There is also another gay rights case before the Supreme Court, Fulton v. City of Philadelphia, that deals with whether faith-based child welfare organizations can reject same-sex couples and others whom they consider to be in violation of their religious beliefs.
“I think LGBTQ advocates should be less concerned with the application of RFRA and more concerned with religious carve-outs as a matter of constitutional rights, which is what Fulton is all about,” Kreis said.
He said if the Supreme Court decides there is a constitutional exemption to nondiscrimination law based on religious liberty, that is not something Congress can easily remedy.
Joshua Block, an attorney for the American Civil Liberties Union, agreed that the ruling in Fulton could have a major impact on the extent to which LGBTQ people can enjoy nondiscrimination protections.
“There is a possibility that while the court with one hand extends statutory protections to LGBT people, it might with the other hand gut those same protections by expanding religious freedom defenses,” he said.
Transgender military ban
Title VII does not deal with the military as an employer, though the ruling could have consequences for several pending lawsuits regarding the ban on transgender service in the military.
In July 2017, Trump tweeted that the U.S. military would no longer “accept or allow transgender individuals to serve in any capacity.” When the administration implemented the measure in April 2019 — which it claims is not a “ban” — it ended an Obama-era policy that allowed trans men and women to serve openly and to receive transition-related medical care while enlisted.
Several LGBTQ advocacy organizations have filed lawsuits challenging the ban, and four federal courts issued orders forbidding the government from enforcing it. However, in January 2019, the administration “leapfrogged” to the Supreme Court, which ruled 5-4 to allow the ban to go into effect while legal challenges play out in the lower courts.
“The four district courts that issued injunctions in the first place all determined that the ban was sex discrimination,” Levi said. “This is confirmation from the Supreme Court.”
Levi said the Bostock ruling is highly likely to play in favor of prospective transgender service members.
“It really takes the government out at the knees,” Levi added.
Trump administration rules
Many federal laws include the prohibition of discrimination on the basis of sex. Under the Obama administration, government agencies — including the departments of Health and Human Services, Education, Justice, and Housing and Urban Development — issued rules to clarify the scope of “sex” discrimination to include discrimination based on sexual orientation and gender identity. The Trump administration, however, has issued rules that reverse that interpretation. According to experts, the Supreme Court’s ruling may have direct bearing on these rules.
Department of Health and Human Services
Earlier this month, the Department of Health and Human Services issued a final rule that rolls back nondiscrimination protections embedded in the Affordable Care Act (ACA) by adopting a narrow definition of sex.
The HHS said in a statement it would recognize “sex discrimination according to the plain meaning of the word ‘sex’ as male or female and as determined by biology.”
In doing so, the department signaled that programs and providers are not prohibited from denying services to an individual on the basis of their sexual orientation or transgender status.
“I don’t think that rule aged well,” Levi said. “It is predicated on precisely the argument that the court rejected, taking an extraordinarily narrow and artificial understanding of what sex means.”
The rule is already the subject of litigation. On Monday, Lambda Legal filed another suit against the Trump administration on behalf of several LGBTQ organizations whose membership will be affected by the new HHS rule. The new rule is “in contravention and defiance” of the Supreme Court’s decision last week, Omar Gonzalez-Pagan, a senior attorney and health care strategist for Lambda Legal said Monday on a media call.
“HHS has taken these actions notwithstanding and despite the decision of the Supreme Court of the United States on June 15, 2020 holding that discrimination on the basis of a person’s transgender status or sexual orientation is discrimination on the basis of sex,” the suit states.
Gonzalez-Pagan said the Bostock decision “really bolsters our case, it is wind in our sails.”
Departments of Education and Justice
At the Department of Education, Secretary Betsy DeVos rescinded an Obama-era guidance aimed at protecting transgender students from discrimination under Title IX in 2017, and in early 2018 confirmed the department would not follow up on civil rights complaints by trans students prohibited from using the bathroom corresponding to their gender identity.
Title IX of the Education Amendments of 1972 prohibits sex discrimination in federally funded educational institutions.
Gavin Grimm, a transgender student from Virginia, sued the Gloucester County School Board under Title IX when he was barred from using the boys bathroom in high school. Grimm is currently awaiting a decision from the 4th U.S. Circuit Court of Appeals.
“I don’t think there is any question that the analysis in Bostock about Title VII would also apply in Title IX,” Block said.
Two Title IX cases pertaining to transgender students’ participation in sports are making their way through the courts.
Three cisgender (nontransgender) athletes sued the Connecticut Interscholastic Athletic Conference alleging that they have been deprived of wins, state titles and athletic opportunities by being forced to compete against transgender athletes who were assigned male at birth.
The conference allows athletes to compete as the gender with which they identify, arguing that the policy is in accordance with state law and Title IX, the federal law that allows girls equal educational opportunities, including in athletics.
The Department of Justice has sided with the cisgender athletes on the basis of a narrow definition of “sex.”
In Idaho, a similar legal battle is playing out. In March, the state passed the Fairness in Women’s Sports Act, which prohibits transgender athletes from competing in sports consistent with their gender identity. Idaho is the first state in the nation to enact such a ban.
The ACLU filed a suit on behalf of two transgender athletes who argue the Idaho law violates their rights under Title IX.
Department of Housing and Urban Development
The Department of Housing and Urban Development proposed a rule last May that would reverse an Obama-era measure allowing transgender individuals seeking services at government-funded shelters to be housed according to their gender identity, not their sex assigned at birth. The proposed measure could, for example, have a transgender woman housed in a men’s homeless shelter.
Sasha Buchert, a senior attorney at Lambda Legal, said in light of the Bostock decision, “it would be absolutely absurd to move forward” with this proposed rule.
“The Fair Housing Act prohibits discrimination based on sex,” Buchert said. “What this administration wants to do is ignore existing case law and now the Supreme Court and move forward with the Trump administration’s interpretation of the law.”
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Congress may be the next battleground when it comes to the clash between religious liberty and LGBTQ rights. The Equality Act, passed by the House in May of last year, would modify existing civil rights legislation to ban discrimination based on sexual orientation and gender identity in employment, housing, public accommodations, jury service, education, federal programs and credit.
Despite the Bostock ruling, LGBTQ advocates say the Equality Act is important to shore up nondiscrimination protections in federal law.
Kreis said the bill would “clarify religious exemptions including RFRA” and expand protections to areas like public accommodation, which are not covered by Title VII.
Nine Republicans also introduced a nondiscrimination bill, the Fairness for All Act, late last year which would outlaw discrimination against LGBTQ people in many areas but contain religious exemptions, such as allowing religious groups to employ only those who agree with their doctrines. While ostensibly designed as a compromise bill, some civil rights groups, like the ACLU, argue that the Fairness for All Act would “greenlight” discrimination and could weaken “long-standing protections in federal and state laws for everyone, not just LGBTQ people.”
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