Over the past 20 years, the Supreme Court has established basic rights for gays and lesbians — the right to marry the person you love regardless of sex or gender, the right to private sexual relations, and the right to be able to petition local governments for anti-discrimination protection. It’s impossible to downplay the significance of these decisions in reshaping American life around sexual orientation equality.
However, as important as these cases are, they didn’t solve every legal problem for LGBT people. In fact, far from it. Left unresolved is whether there is protection against discrimination for LGBT folks in many other walks of life, such as employment, education, and the military, and whether religion can trump equality. These are pressing issues; for many people, even more pressing than the issues already decided by the Supreme Court.
As it turns out, we could be on the precipice of the Supreme Court deciding all of these issues at roughly the same time. Currently pending before the Supreme Court are petitions asking it to resolve five different issues that, taken together, could establish broad protection for LGBT people against discrimination …. or could set the quest for equality back decades. Anyone interested in this issue should be watching these cases carefully:
1. Sexual orientation employment discrimination
Even though most people think gay, lesbian, and bisexual people can’t be fired from their jobs because of their sexual orientation, the sad reality is that this is true only in 24 states and the District of Columbia. In the other states, there is no protection against discrimination at work based on sexual orientation. And despite decades of trying to change it, Title VII, the federal law that protects against discrimination at work, does not include sexual orientation as the basis for prohibited employment discrimination.
But that doesn’t mean that people fired from work because they are gay haven’t tried to use Title VII to help their cause. What they’ve done is sue their employers under a theory that says that, because Title VII clearly prohibits sex discrimination, discrimination against gay people is a form of sex discrimination. The basic argument is that employers who treat gay people differently are doing so based on the sex of the employee because, after all, you can’t know if someone is gay without knowing their (and their partner’s) sex.
For decades, federal courts have rejected this argument, but recently that trend has reversed. Federal appeals courts in New York and Chicago have ruled in favor of gay plaintiffs. Meanwhile, the federal appeals court in Atlanta ruled against a gay plaintiff. The losing parties in the New York case (Altitude Express v. Zarda) and the Atlanta case (Bostock v. Clayton County) have asked the Supreme Court to hear their cases and decide the issue once and for all. The Supreme Court was supposed to decide whether to hear these cases at the end of this week, but has postponed that decision for at least one more week.
2. Gender identity employment discrimination
What about discrimination against trans people at work? Only 22 states and the District of Columbia prevent gender identity discrimination at work. And, like in the case of sexual orientation, Title VII has not been changed to cover gender identity, despite efforts to do so.
However, like gay and lesbian workers, trans workers have tried to sue their employers under Title VII, claiming that discrimination based on gender identity is a form of sex discrimination. Because of the more obvious connection between sex and gender, federal courts have been more amenable to this claim. They generally reason that anti-trans discrimination is a form of gender stereotyping, because the employer is expecting men (or women) to act a particular way (not to have had a different sex assigned at birth than what their gender identity is now). However, not all courts have ruled this way.
One court that did protect a trans employee was the federal appeals court in Cincinnati. The employer in that case (R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission) has asked the Supreme Court to review the case, and the Trump administration has weighed in on the side of the employer, arguing that Title VII does not help trans workers. Like the two cases about sexual orientation, the Supreme Court was supposed to decide whether to hear this case on Friday, but has postponed that decision until next week at the earliest.
3. Gender identity education discrimination
The big issue in the world of education has been what obligation schools have for trans students in terms of bathrooms and locker rooms. The Supreme Court almost decided this issue last year, but the Trump administration changed the rules, so the Supreme Court punted the case back to the lower courts.
In the meantime, some schools have proactively tried to treat trans students with dignity, allowing them to use the bathroom and locker room that matches their gender identity. Boyertown Area School District in Pennsylvania is one of those. In response to that decision, the families of some cisgender students at the school have sued the school, arguing that the school is violating the cis kids’ rights by allowing trans kids to be in private spaces with cis kids. As a matter of law, the parents are asking the courts to say that the Constitution and Title IX, the federal law that protects against sex discrimination in education, do not protect trans individuals.
The federal appeals court in Philadelphia didn’t buy this argument, ruling swiftly in favor of the school district’s inclusive policy. Just before Thanksgiving, the losing parents asked the Supreme Court to review the case (Doe v. Boyertown Area School District). The school district will have time to respond, and then the Supreme Court will decide what to do.
4. Trans military discrimination
One of President Trump’s major policy initiatives soon after taking office was his effort to ban trans people from serving in the military. Lower courts have held that this policy is unconstitutional, ruling both that it is a form of sex discrimination already prohibited by the Constitution and also that it is a form of gender identity discrimination which should be newly prohibited by the Constitution.
The day after Thanksgiving, President Trump asked the Supreme Court to hear an emergency appeal of the cases. Normally, the Supreme Court waits for an appeals court to rule before it hears a case, but the President claims that this case (Trump v. Karnoski) is so important that the Supreme Court should skip that step and decide the case directly from the initial trial court decision.
5. Religious exemptions
Finally, remember this past summer’s decision in Masterpiece Cakeshop, where the Supreme Court ruled in favor of a religious baker who didn’t want to bake a cake for a gay couple getting married? That decision was very narrow and based on the Colorado administrative agency’s apparent bias against religion. It announced no general rule about whether religious businesses are exempt from a state’s requirement to treat LGBT people equally.
Now, that general issue is back before the Supreme Court. This new case comes from Oregon, where Sweet Cakes by Melissa, a bakery owned by a religious couple, is refusing to comply with Oregon’s law that prohibits discrimination against gay couples. This couple is asking the Supreme Court to rule that their religion allows them to discriminate against anyone, not just gay people, an argument that would, if adopted, blow a huge hole in the middle of all anti-discrimination law. The briefing in that case (Klein v. Oregon Bureau of Labor and Industries) is underway and should be concluded by the beginning of the new year.
Collectively, these cases present some of the most pressing LGBT legal issues there are. If the Supreme Court decides to take these cases, it could vastly expand the legal rights of LGBT people in ways that would take them many steps closer to full equality.
However, the big fear is that this is a different Supreme Court without Justice Anthony Kennedy. He authored all of the Court’s major LGBT rights decisions, but his replacement, Brett Kavanaugh, is widely believed to be much more conservative. If the Kavanaugh Supreme Court agrees to hear any or all of these cases, the danger is that it could set LGBT equality back in ways that will take generations to overcome.
So maybe the best hope for those concerned about equality is that the Supreme Court avoids all of these issues for now. That’s entirely possible. However, given the importance of these matters and the increasing number of cases that the lower courts are hearing, it’s hard to believe that the Supreme Court won’t take some of these cases, if not all. And when it does, we’ll have to brace ourselves for momentous rulings that will affect millions of people’s lives, whatever the outcome is.