Did you know that in 28 states an employer could fire you for being gay? Technically speaking, an employer can fire you for being gay anywhere, at any time, but you would only have legal recourse in about half the country. For transgender people, it’s even worse; only 20 states and Washington D.C. have laws on the books that protect residents from employment discrimination based on gender identity. That means an employer could fire a trans person for being trans in more than half the country—if they’re even hired in the first place.
Few people are aware of the fact that LGBTQ people have zero workplace protections at the federal level, as such laws are legislated at the state level. According to the Movement Advancement Project, only about 50 percent of the United States’ LGBTQ population benefit from such protections.
Perhaps that gap is the result of the mainstream gay rights movement’s longtime focus on issues like achieving marriage equality and repealing “Don’t Ask, Don’t Tell” to the detriment of others, like employment access and housing discrimination. The movement was victorious on the former two fronts—although opponents of same-sex marriage are slowly chipping away at the Obergefell v. Hodges ruling at the state level and President Donald Trump is not above using trans soldiers as pawns in whatever game of political checkers he’s trying to pass off as chess. Maybe those victories gave people the false impression that important things, like our right to not get fired or evicted because of our gender or sexuality, were protected at the national level.
As a result of the lack of protection for LGBTQ workers in the U.S., legal defenders of such rights have had to seek defensible alternatives under existing law. For decades, one of those stalwart defenses has involved Title VII of the Civil Rights Act of 1964, which states that it is “unlawful” for an employer “to discriminate against any individual…because of such individual’s race, color, religion, sex, or national origin.” Defense attorneys argue that legal protections based on your sex should cover you in the face of homophobia and transphobia; in other words, it would violate your civil rights if you got fired for having a same-sex partner or because your manager didn’t feel comfortable working with you once he clocked your voice.
These would both be different forms of sex-based discrimination, the line of thinking goes, and thus both violate an individual’s civil rights. Think about it: Would a woman get fired for having a wife if she were a man with a wife instead? That is essentially what the courts decided in 1979’s DeSantis v. Pacific Telephone and Telegraph Co. A later case, Ulane v. Eastern Airlines, Inc., set a similar precedent with respect to gender identity in 1984. Lawyers have used Title IX of the Education Amendments Act of 1972 to similar ends, arguing that the law’s use of the word sex covers instances of discrimination against LGBTQ students, such as when Gavin Grimm of Grimm v. Gloucester County School Board was denied access to communal restrooms on his public high school’s campus.
The Justice Department will no longer pursue justice for LGBTQ people facing discrimination that stems from their sexuality or gender identity.
Due to the success of such defenses and the utter lack of legislative alternatives at the federal level, Title VII has emerged as one of the leading legal defenses in cases involving LGBTQ discrimination. That’s why the recent actions of the United States Department of Justice should concern all Americans.
On Thursday, July 28, the Department filed an amicus brief in a court case involving a skydiving instructor who was fired after disclosing his sexual orientation to a customer. The instructor’s case, like many before it, hinged on the idea that discrimination against a gay man on account of his sexual orientation is a form of sex-based discrimination. But the Department of Justice disagreed. “The sole question here is whether, as a matter of law, Title VII reaches sexual orientation discrimination,” the brief read. “It does not, as has been settled for decades. Any efforts to amend Title VII’s scope should be directed to Congress rather than the courts.” In other words, the Justice Department will no longer pursue justice for LGBTQ people facing discrimination in the workplace as long as that discrimination stems from their sexuality or gender identity.
The impact of this statement is far-reaching, says Greg Nevins, the Employment Fairness Project Director at Lambda Legal, with the potential to influence a number of other cases involving LGBTQ workplace discrimination vying for the Supreme Court’s attention like Hively v. Ivy Tech Community College and Evans v. Georgia Regional Hospital. He doesn’t believe that we should drop the Title VII strategy in favor of a purely legislative approach to protecting LGBTQ workers. “We should be riding both horses, obviously,” he tells me. Still, he concedes, “the Equality Act would be very good” right about now.
The Equality Act is one of the most recent attempts to introduce federal legislation that would provide Americans with legal protections against employment discrimination, housing discrimination and a number of other forms of discrimination that often target the most marginalized members of our communities. First introduced by Representative David Cicilline of Rhode Island in 2015, the bill died in committee. The representative reintroduced the Equality Act in May 2017 with 241 cosponsors. It currently sits in the House’s Subcommittee on the Constitution and Civil Justice.
We need to be hopeful that the bill will become law, but I myself am cautious. People have been taking this issue to Congress, as the Justice Department’s brief suggests, for more than 40 years. Legislators have made numerous attempts to amend Title VII to add phrases like “affectional or sexual preference” to the law’s many axes of marginalization since 1975, but every effort has failed. The Department’s brief, Trump’s recent ban on trans people serving openly in the military and the fight to repeal the Affordable Care Act demonstrate how fragile and conditional recent victories in the name of equality have been, no matter which branch of government have granted them to us.
Still, I am hopeful that the Equality Act might actually become law and that enough people will choose to be on the right side of history and call their representatives and senators to make its passage happen. Further out, I’m hopeful that, when the Trump administration eventually comes to a close, Attorney General Jeff Session’s successor will reverse the Justice Department’s oppressive reading of Title VII. I am hopeful that the legal and political erasure of queer and trans people will not continue.