The Fight for LGBTQ+ Rights: One Step Forward, One Step Back

By Julia Roos

This month, LGBTQ+ community members and allies have come together to celebrate their identities and increased visibility. Over the past decade, monumental strides have been made towards equality for all Americans regardless of their identity. In 2015, the landmark civil rights case, Obergefell v. Hodges, legalized same-sex couples’ rights to marry under the Fourteenth Amendment. On June 15, 2020, the Supreme Court interpreted a statute that will transform the lives of millions of LGBTQ+ Americans.

In an unanticipated 6-3 ruling, the Supreme Court ruled that Title VII of the Civil Rights Act of 1964 applies to employment discrimination based on sexual orientation and gender identity. The Court heard a series of three cases: Bostock v. Clayton County and Altitude v. Zarda concerned lawsuits from gay men who asserted that they were fired because of their sexual orientation, and the R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission case was brought by a transgender woman who was fired after she revealed that she is a transgender woman and will come to work in women’s clothing. Title VII prohibits employers’ discrimination against an employee “because of race, color, religion, sex, and national origin.” The Court questioned if employment discrimination “because of … sex” encompasses homosexual and transgender individuals. Since the present Supreme Court is fundamentally conservative, this ruling surprised communities and allies, while it disappointed many Republicans. Trump’s first appointee to the court, conservative Justice Neil Gorsuch, authored the majority opinion that “discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second.” He furthers his rationale by explaining, “an employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex.” Imagine this scene: if an employer fires a man for having a husband but not a woman, they are firing that man for an action that they would not question in a female worker, which is discriminating based on sex. Sex undeniably plays a role in the concept of homosexuality and gender identities. 

Justices Samuel Alito and Clarence Thomas wrote the leading dissent, which criticized the majority and accused them of sailing under a “textualist flag,” essentially pretending to make decisions strictly based off of the text but instead updating it to better reflect the values of modern society. Gorsuch acknowledged that the drafters of the Civil Rights Act did not likely have LGBTQ+ groups in mind when creating Title VII. However, he pointed out several major court rulings that have read the law expansively, for example, barring discrimination in the workplace against women because they have children, and prohibiting sexual harassment of both men and women.

Before this ruling, 29 states lacked full protection for citizens against discrimination based on gender identity and sexual orientation in employment, housing, and public accommodations. These states substantially fell along the partisan divide as red states in the south and the midwest did not uphold statutory protection. According to the Williams Institute at the UCLA School of Law, this ruling will protect 4 million LGBTQ+ workers in those 29 states that lacked protection under federal law. The Court’s order is the most influential in the American LGBTQ+ movement’s decades-long history. Earlier successes included the implementation of anti-discrimination laws by states in 2013 and the legalization of same-sex marriage in 2015. Not everyone gets or wants to be married, but most American adults do work, and need to work, to provide for themselves or their families. 

Although this landmark case indicates an enormous stride for the LGBTQ+ community, Gorsuch addressed several possible stipulations that will form after this ruling, like employers having religious objections to hiring gay or transgender workers. Freedom of religion, stated in the First Amendment of the Bill of Rights, is a fundamental aspect of the United States government. The free exercise clause is an important regulation to follow, especially when it comes to minority religious groups whose practices are easily infringed upon by laws and policies enacted by the majority. Although, when exemptions from laws and statutes to satisfy religious beliefs or practices trample on the rights of others or essential societal values like nondiscrimination, policymakers should not blindly support freedom of religion. Proponents of laws that make exceptions for religious groups argue that they effectively balance religious freedom with LGBTQ+ rights, when in reality, these laws create exemptions for religious groups with no consideration for the burden and harm on others. These exceptions take the form of refusing to provide services to a same-sex wedding, permitting religious adoption agencies to not place a child in a same-sex family, healthcare providers turning away LGBTQ+ patients, and countless other injustices. By encouraging people to place their biases against LGBTQ+ people above fairness and equality, it challenges the broader principle that people should not be discriminated against because of who they are. The recent Supreme Court ruling does not directly combat this complication, but for LGBTQ+ groups to make this much progress in the judicial system, and in society, anti-LGBTQ+ discrimination laws should be enforced on every individual, and not be disregarded by people with “religious” or “moral” standards. 

President Trump has been actively pursuing the Evangelist constituency, as they made up a large percentage of his voters in the 2016 election. According to the Pew Research Center, white evangelical groups’ confidence in Trump’s response to the COVID-19 pandemic has decreased since March. As a response, Trump pushed for churches to reopen, visited religious sites, and continued to advance conservative social policies. Although the statute only refers to employment discrimination, the other prohibitions of education, housing, and public accommodation should likely follow this decision. The outcome of the ruling directly reprimands the Trump Administration, who use its rule-making power to take protections away from transgender individuals. Their attempt to roll back transgender healthcare rights from Section 1557 of the Affordable Care Act may bring this case back into question, since this rule would remove nondiscrimination protections from people based on sexual orientation and gender identity. Supporters of this rule believe that the reversal of Obama-era regulations is necessary to define the meaning of “sex discrimination,” so healthcare providers can legally harm this already vulnerable group, even amid a pandemic. The original law stated that protections of sex discrimination include males, females, a combination of both, or individuals that identify as neither. The United States Department of Health and Human Services finalized the rule in June 2019 that will reverse the former definition of sex discrimination to be again based on biological sex exclusively. They claim that this regulation will save doctors and hospitals billions of dollars over five years, which makes sense considering these institutions can legally turn away the one million transgender people that live in America and seek healthcare. The implementation of this new rule will lead to dangerous refusals for transgender citizens in the healthcare system: a checkup at a doctor’s office, a transgender man who needs treatment for ovarian cancer, a hysterectomy not being covered by an insurer because it relates to someone’s gender transition. Fortunately, various LBGTQ advocacy groups, clinics, and organizations, like the Human Rights Campaign, will sue the Trump Administration for rolling back LGBTQ+ healthcare protections. 
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No American should be refused care because of a provider’s beliefs or morals against the individual’s existence. Hopefully, the outcome of the Supreme Court’s decision will outlaw the Trump Administration’s war on LGBTQ+ rights. The definition of “sex discrimination” should apply to gender identity or sexual orientation on every account to every person and in America regardless of religious affiliation. Since when did the value of equality in America be prioritized for certain groups over others? Why can people stigmatize the LGBTQ+ community in the name of religious freedom? Nobody should be turned away from healthcare providers, employment, or any other accommodations because of who they are.