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Policy Matters: An Update on LGBTQ+ Civil Rights As the Supreme Court Prepares to Weigh In

This week, the Supreme Court is making headline news again. Yesterday, the nation’s highest court held oral arguments on three cases that may shape the future of LGBTQ+ civil rights in America…

Depending on whether President Donald Trump wins a second term in 2020. In advance of National Coming Out Day and what promises to be a very special Las Vegas PRIDE Weekend, let’s review what’s happening in the nation’s highest Court and what a few candidates are now offering on the campaign trail.

We may have marriage equality, but we still don’t have “equal justice under the law” just yet.
Photo by Jeff Kubina, licensed under Creative Commons, and made available by Wikimedia

In recent years historians and some LGBTQ+ civil rights leaders have heralded the fast pace of progress on matters like relationship recognition, from the 1996 passage of the so-called Defense of Marriage Act (DOMA) to bar the federal government from legally recognizing queer relationships to the attempts to pass a Federal Marriage Amendment from 2003 to 2006 to ban marriage equality nationwide, then the Supreme Court’s overturning of (Section 3 of) DOMA in 2013 and guaranteeing nationwide marriage equality in 2015.

And yet, despite the LGBTQ+ civil rights movement’s success on marriage equality, other fundamental rights remain out of reach in much of the country. In some states, such as our own State of Nevada, LGBTQ+ residents are guaranteed equal protection under the law on workplace discrimination, housing discrimination, hate crimes, health care access, public education, and more. But for some 54% of Americans living in other states, these rights are not legally recognized. 

Among those 54% of Americans are Donald Zarda, Gerald Bostock, and Aimee Stephens. Zarda and Bostock are suing over being fired because of their sexual orientation, and Stephens was fired by a boss who claimed he’d violate “god’s commands” if he had respected her gender identity and expression. All three cases are now pending in the U.S. Supreme Court, where the nine Justices will decide whether Title VII of the Civil Rights Act of 1964, which explicitly bans discrimination on the basis of sex (as in, gender), also forbids discrimination on the basis of sexual orientation and gender identity/expression.

So what’s going on at the Supreme Court?
Photo courtesy of the Oyez Project, licensed under Creative Commons, and made available by Wikimedia

Prior to last year, Justice Anthony Kennedy was most often the deciding vote to protect LGBTQ+ rights at the Supreme Court. Now that he’s retired, the picture appears much bleaker. While the Court has four Democratic-appointed Justices (Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan) who’ve consistently ruled in favor of LGBTQ+ civil rights, the other five Justices (Clarence Thomas, Chief Justice John Roberts, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh) were appointed by Republican presidents and have typically not been seen as allies on the bench (to put it very mildly).

That’s why Tuesday’s oral arguments came as a bit of a pleasant surprise for civil rights activists. Up until this week, LGBTQ+ community leaders were expecting the worst. And as expected, Roberts and Alito seemed hostile toward the plaintiffs’ attorneys while Thomas remained silent (as is typically his practice) and Kavanaugh appeared to keep a poker face.

On April 10, 2017, Chief Justice John G. Roberts, Jr., administered the Constitutional Oath to the Honorable Neil M. Gorsuch in a private ceremony attended by the Justices of the Supreme Court and members of the Gorsuch family. The oath was administered in the Justices’ Conference Room at the Supreme Court Building. Chief Justice John G. Roberts, Jr., and Judge Neil M. Gorsuch in the Justices’ Conference Room, Supreme Court Building. Photo provided by the U.S. Supreme Court.

However when the conversation moved towards a debate over whether the already expansive language of the 1964 Civil Rights Act (which also forbids racial, ethnic, and religious discrimination) can be interpreted to include sexual orientation as well, Gorsuch seemed to concur with Kagan that a “simple test” proves that Zarda’s and Bostock’s firings count as illegal discrimination. At one point when the defendants’ attorney suggested that sexual orientation discrimination doesn’t really count as sex discrimination, Gorsuch countered, “Isn’t sex also in play here, and isn’t that enough?”

But before anyone gets too excited about Gorsuch, he then expressed fear of “social upheaval” when the Court heard Stephens’ case and seemed to suggest the need for “judicial modesty” when it comes to showing basic human dignity to transgender Americans. Thus far, it appears likely that the other four Republican-appointed Justices will almost certainly rule against all three plaintiffs while the four Democratic-appointed Justices rule in favor of all three plaintiffs. Gorsuch, however, may try to “split the difference” in affirming gay rights at work while disregarding the rights of trans* workers, or he may rule against all three and “soften the blow” with some call for Congress to change federal law, or Kagan may actually persuade Gorsuch to apply his “textualist” doctrine to rule in favor of all three plaintiffs.

As we await these Supreme Court decisions, let’s see how the Democratic candidates differ from Trump on LGBTQ+ civil rights
Photo by Andrew Davey

Regardless of where Gorsuch lands on these three workplace discrimination cases, it appears likely that Congress and the White House will ultimately have to address this. And as Rep. Susie Lee (D-Las Vegas) explained during an event at her district office yesterday, the U.S. House already has by passing the Equality Act in May. Yet with Senate Republican leaders refusing to move the Equality Act on their side of the Capitol, and with the Trump administration continuing to oppose such comprehensive civil rights legislation, civil rights advocates look to the Democratic candidates running against Trump to commit to a plan of action for 2021 absent a favorable Supreme Court ruling next year.

Back in June, we looked at how the 2020 Democratic presidential candidates seemed to agree on protecting LGBTQ+ civil rights. Today, three of them released plans that go beyond the boilerplate talking points we covered in June. In addition to passing the Equality Act, South Bend, Indiana, Mayor Pete Buttigieg, the nation’s first openly gay presidential candidate, is proposing a national mentorship program for LGBTQ+ youth, permanent standards to protect LGBTQ+ immigrants and refugees, finishing the repeal of “Don’t Ask Don’t Tell” (DADT) by ending the ban on transgender military servicemembers, enacting a nationwide ban on conversion therapy on LGBTQ+ youth (which Nevada banned in 2017), and encourage school districts across the nation to enact the kind of comprehensive anti-bullying program that Nevada has embarked upon since 2015.

Photo by Andrew Davey

Right around the same time Buttigieg released his plan, Senator Elizabeth Warren (D-Massachusetts) released her own plan. Like Buttigieg, Warren wants the Equality Act, a nationwide conversion therapy ban, finishing DADT repeal, and anti-bullying programs in schools across the nation. In addition, Warren is promising the Do No Harm Act to reverse recent Supreme Court rulings that open the door to use of “religious freedom” as a license to discriminate, a “Medicare for All” single-payer system that guarantees full health care equality for LGBTQ+ patients, the BE HEARD Act to extend anti-harassment protections to independent contractors and workers at small businesses, and reauthorization and full funding for a fully inclusive Runaway and Homeless Youth Act to aid homeless LGBTQ+ youth.

Senator Kamala Harris (D-California) was a sponsor of the Do No Harm Act in 2018. In addition to her continuing support for this legislation, as well as the education, health care, immigration, and military equality proposals she shares with Warren, Harris is promising to establish an office for Chief Advocate for LGBTQ+ Affairs in the White House, improve tracking and reporting of hate crimes, end police profiling of LGBTQ+ communities, and develop new programs to improve access to jobs, housing, and health care for transgender Americans.

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