By Kira Lingala
Today, millions of LGBTQ+ Americans no longer have to live in fear of losing their job or being harassed at work, simply because of who they are and who they love. Despite a conservative majority on the Court that has been skeptical of expanding Civil Rights protections, the four liberal justices were joined by conservatives John Roberts and Neil Gorsuch in issuing this landmark decision in the fight for LGBTQ+ rights.
Nearly five years after the landmark marriage equality ruling in Obergefell v. Hodges, the Court reaffirms its commitment to the rights of LGBTQ+ Americans with rulings on three cases—Bostock v. Clayton County, Altitude Express v. Zarda, and RG & GR Harris Funeral Homes v. Equal Opportunity Commission.
The central question of all three cases was whether the 1964 Civil Rights Act protections against “sex” discrimination also apply to cases of discrimination based on an employee’s gender identity or sexual orientation.
Unlike Justice Anthony Kennedy’s opinion on marriage equality from 2015, Justice Gorsuch’s ruling today does not make soaring proclamations about the beauty of love and the importance of marriage. Instead, Gorsuch takes a legalistic and logical approach to the case. Even so, the clarity of the opinion is refreshing after so many years of confusion for LGBTQ+ Americans unsure about their rights in the workplace.
Gorsuch opens his opinion writing, “Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear.” Indeed, the answer has always been clear for our community, but today, it rings out from the highest court in the land.
Today’s ruling would not have come without the bravery of the three plaintiffs who took on their employers and filed suit after being fired simply for their identities. Gerald Bostock was a child welfare advocate in Clay County, Georgia, who was fired after his participation in a gay softball league became known to his employer.
While we cherish the fact that Mr. Bostock can rejoice in this victory with us, it is important to remember that this decision is also marked by tragedy. Two of the three plaintiffs in the LGBTQ+ discrimination cases brought before the court have tragically passed away. Don Zarda, the skydiving instructor fired from his job on Long Island, died in a skydiving accident in 2014. Aimee Stephens passed away just last month from complications related to kidney disease after being fired from her job at a funeral home in 2013.
The deaths of these two LGBTQ+ rights trailblazers are not incidental, but rather an example of the compounding, harmful effects of the type of discrimination the Court has found unlawful today. Zarda and Stephens are not the first LGBTQ+ Americans to die in the course of our fight for equality and it is an unfortunate truth that they will not be the last.
Zarda, Stephens, and Bostock will now be remembered as three pivotal figures in the story of this country’s slow, complicated march toward protecting the rights of LGBTQ+ Americans. Passed in 1964, the Civil Rights Act only included protections against sex discrimination due to a last minute change before being passed on the House floor.
It wasn’t until decades later that two Supreme Court cases—1989’s Price Waterhouse v. Hopkins and 1998’s Oncale v. Sundowner Offshore Services, Inc.—established that discrimination against workers who fail to conform to gender norms is illegal. These cases protected women who were asked to wear lipstick or skirts and men who were harassed for being perceived as effeminate.
For years, the lower courts have been divided on whether these same protections also make LGBTQ+ discrimination illegal. Today, the Supreme Court affirms that the protections against sex discrimination also protect the rights and opportunities of LGBTQ+ Americans, bringing an end to the confusing lack of clarity that has plagued our community for so long.
This groundbreaking decision builds on the years of work activists and legislators have been engaging in at the state level. New Yorkers have been lucky to be protected from employment discrimination by state law, along with 21 other states, Washington DC, Guam, and Puerto Rico.
However, LGBTQ+ Americans in other states, including 16 that had no protections at all, can finally share in the freedom and security New Yorkers have been able to enjoy since the passage of the NY Gender Expression Non-Discrimination ACT (GENDA) and the Sexual Orientation Non-Discrimination Act (SONDA).
Unfortunately, the Supreme Court’s decision today does not protect all LGBTQ+ Americans to the extent of state laws like GENDA.
In his opinion, Justice Gorsuch maintains that today’s decision does not deal with questions of bathroom or locker room access, and leaves room for employers to discriminate on religious grounds. There still remain critical gaps in federal non-discrimination laws for LGBTQ+ people, despite this ruling. After today’s decision, it will still be legal for stores, restaurants, and hotels to discriminate against LGBTQ+ people.
Federally funded programs, like hospitals, colleges, and adoption are still free to discriminate as well. In addition to the hateful policing of transgender folks’ access to restrooms, discrimination will remain legal against just about anyone in a wide range of public accommodations.
Last week, the Trump administration decided to strip health care protections for transgender patients, serving as a frightening reminder that even in the middle of our current health crisis, LGBTQ+ Americans could be denied the medical care they need. LGBTQ+ Americans live with this fear even in the best of times, which is exactly why we must make sure no American faces discrimination or is denied services simply because of who they are.
We need Congress to fully protect LGBTQ+ people from discrimination and pass full federal non-discrimination protections—and for the business community to play a leading role in advocating for these legal protections. But that’s just part of what is needed to achieve true equality.
The past few weeks have also brought to light the discrimination and violence perpetrated against Black people—and all people of color, including those who are LGBTQ+—even when such discrimination and violence are formally prohibited by law. The reality of racism in America, despite legal protections, is not news to the Black community. This reality is compounded by homophobia and transphobia for Black LGBTQ+ people, who will still face disproportionate discrimination in their lives. Just in the past few weeks, black trans folx Tony McDade, Dominique “Rem’mie” Fells and Riah Milton have all been killed in transphobic attacks.
Until our culture of hate changes, and our laws catch up to the need to remedy systemic racism and inequality, our movement’s pursuit of LGBTQ+ equality is far from over. Today’s decision is an important step forward. It is a powerful reminder of how much work is left to do, and how critical that work remains.
To learn more about today’s decision, join Decision Day’s virtual rally at 7pm and a virtual town hall at 8:30pm. You can also learn more about the important work political organizations are doing for LGBTQ+ rights in New York State at The LOFT’s Advocacy Panel this Wednesday at 6:30pm.