Justice Samuel Alito warned that the ruling “is virtually certain to have far-reaching consequences,” in his dissent from the 6-3 decision.
The Supreme Court’s landmark ruling that federal anti-discrimination law extends to gay and transgender workers could usher in a new era of expanded rights for LGBTQ people in areas from housing to health care.
While the high court’s ruling Monday only applies directly to the workplace discrimination protections provided under Title VII of the 1964 Civil Rights Act, advocacy groups are vowing to extend to myriad other laws the justices’ view that discrimination “based on sex” includes sexual orientation or gender identity.
Justice Samuel Alito warned that the ruling “is virtually certain to have far-reaching consequences,” in his dissent from the 6-3 decision. “Over 100 federal statutes prohibit discrimination because of sex,” wrote Alito.
There are still no explicit federal legal protections for gay and transgender individuals in health care, credit and education, among other areas. Advocates are hoping the ruling will bolster efforts to win such protection in the courts or in Congress. Gabriel Arkles, senior staff attorney with the ACLU’s LGBT & HIV Project, said he expects hundreds of cases to be filed in the wake of the ruling.
“There’s so many other aspects of our lives where there are no federal protections, or where those protections are being challenged,” said Alphonso David, president of the Human Rights Campaign. “We have to recognize that Title VII is a great piece of legislation, but it does not provide comprehensive protections.”
The Supreme Court ruling affects employment, “the area of law where Congress has prohibited sex discrimination,” said Sarah Warbelow, legal director at the HRC, during a press call Monday. “We will fight to ensure that it extends to every sex non-discrimination statute in federal and state law.”
Conservative Justice Neil Gorsuch addressed this concern in the majority opinion, writing that “none of these other laws are before us; we have not had the benefit of adversarial testing about the meaning of their terms, and we do not prejudge any such question today.”
“Whether other policies and practices might or might not qualify as unlawful discrimination or find justifications under other provisions of Title VII are questions for future cases, not these,” he added.
The ACLU says it already plans to seize on the high court ruling to challenge the Trump administration’s move on Friday to formally roll back an Obama-era policy that banned health care providers from discriminating against transgender patients.
“The administration cannot rewrite the statute,” said Sean Young, legal director of the ACLU of Georgia, “and they cannot overrule the Supreme Court. So today’s decision directly undermines any of the administration’s attempts to eviscerate protections for LGBT people when it comes to health care.”
The Supreme Court ruling is a matter of statutory interpretation, meaning that Congress still has the ability to change the law.
“Not all of the provisions of the Act include sex as a protected characteristic, most notably, it’s missing from public accommodations, and from a guaranteed across the board non-discrimination with respect to federally funded programs,” said Warbelow. “Congress must act to provide those protections.”
Gay and transgender people have reported widespread harassment due to their orientation or gender identity.
At least 1 in 5 said they have experienced discrimination when applying for jobs, in their compensation, when being considered for promotion, or when trying to rent a room or apartment or buy a house, according to a 2017 survey conducted by National Public Radio and the Harvard School of Public Health.
A 2016 survey of nearly 28,000 people conducted by the National Center for Transgender Equality also found that 26 percent of trans people lost a job due to bias and that 50 percent were harassed on the job. Some 20 percent of respondents said they were evicted or denied housing, and 78 percent of trans students said they were harassed or assaulted.
Of the more than 23,000 Title VII sex-based discrimination charges the Equal Employment Opportunity Commission received in fiscal 2019, 1,868 were related to LGBTQ discrimination, according to the agency’s data.
In May 2019, the Democratic-controlled House passed the Equality Act, which would codify anti-discrimination protections based on sexual orientation and gender identity in housing, employment, credit and federally funded programs, among other areas.
But the bill hasn’t been taken up by the Republican-majority Senate and is not likely to go far, especially during an election year.
Absent a new law passed by Congress, attorneys say discrimination in other areas outside the workplace will have to be litigated in court.
“These issues are out there.” said Jim Paretti, a former chief of staff to the acting chair of the EEOC during the Trump administration. “They will continue to percolate,” he said, saying that questions around other statutes that use the same language as Title VII will have to be worked out in the courts.
This blog originally appeared at Politico on June 16, 2020. Reprinted with permission.
About the Author: Rebecca Rainey is an employment and immigration reporter with POLITICO Pro and the author of the Morning Shift newsletter. Prior to joining POLITICO in August 2018, Rainey covered the Occupational Safety and Health administration and regulatory reform on Capitol Hill. Her work has been published by The Washington Post and the Associated Press, among other outlets.
