The Supreme Court’s decision Monday that backed LGBT employment rights will reverberate through ongoing legislative and legal fights about anti-discrimination provisions in other federal laws and Trump administration policies — and in fights yet to come.
Take the Trump administration rule, finalized just on Friday, under which sexual orientation would no longer be covered by a provision of the 2010 health care law that prohibits discrimination based on sex.
Civil rights groups such as Lambda Legal are all but certain to cite Monday’s Supreme Court decision in their forthcoming challenges to that new rule. The high court decided, 6-3, that firing someone merely for being gay or transgender is discrimination based on “sex” in Title VII of the Civil Rights Act of 1964.
“It’s hard to overstate how much this administration has staked its anti-LGB-and-especially-T agenda on its misreading of Title VII,” Joshua Block, a litigator at the ACLU's LGBT Project, tweeted immediately after the decision. “It’s now an achilles heel in built into almost every terrible regulation and enforcement action for past 4 years.”
And the groups expressed confidence that approach gives them powerful ammunition in that challenge and others, including an ongoing lawsuit on the Trump administration’s transgender military ban.
“Today’s ruling makes the military, so often a successful leader in ending discrimination in American life, an outlier amidst a national consensus that arbitrary discrimination is harmful and wrong,” said Aaron Belkin, director of the Palm Center that researches military personnel policy. “With transgender workers protected by federal law in all other sectors, the military’s transgender ban is now even harder to defend.”
That military issue turns on different legal issues from the latest decision on Title VII. But Justice Samuel A. Alito Jr., in a dissent, predicted that the decision “may exert a gravitational pull in constitutional cases” and cited the military ban challenge.
More directly, litigation on Title IX of the Civil Rights Act of 1964 has also turned on the definition of the word “sex” when it comes to equal treatment in education and sports specifically, and so does the Trump administration rule issued Friday on the health care law, said David Flugman, a civil rights litigator at law firm Selendy & Gay.
“That line of case law is going to immediately be bolstered by this case,” Flugman said. “I think this case will be helpful in a number of ways, and just like Title VII itself, we’ll see this decision used in a number of ways we can’t predict.”
Alito, in his dissent, listed health care, education, freedom of speech and freedom of religion as areas he thought the ruling would affect in the near future.
“Although the Court does not want to think about the consequences of its decision, we will not be able to avoid those issues for long,” he wrote. “The entire Federal Judiciary will be mired for years in disputes about the reach of the Court’s reasoning.”
That includes transgender individuals’ use of sex-assigned bathrooms or locker rooms, or colleges that prefer not to have opposite biological sex roommates in housing. It could affect health care, such as insurance coverage of sex reassignment surgeries. Or it could boost the right of transgender school athletes to participate in sex-segregated sports — and maybe even women’s professional sports teams.
“The effect of the Court’s reasoning may be to force young women to compete against students who have a very significant biological advantage, including students who have the size and strength of a male but identify as female and students who are taking male hormones in order to transition from female to male,” Alito wrote.
Justice Neil M. Gorsuch, writing for the majority, said the court was not addressing any of those issues in three cases covered in the ruling. Whether other policies might qualify as unlawful discrimination under other provisions of Title VII “are questions for future cases, not these.”
But Gorsuch did foreshadow that the Supreme Court might still curtail LGBT employee protection if it clashed with an employer’s religious convictions.
One of the employers sued in the cases decided Monday initially pursued a religious freedom claim at a lower court under the Religious Freedom Restoration Act of 1993, but did not bring that claim in its appeal to the Supreme Court.
“But how these doctrines protecting religious liberty interact with Title VII are questions for future cases too,” Gorsuch wrote.
Democratic lawmakers, who advanced legislation to ensure LGBT workplace protections under Title VII no matter how the court ruled, had argued in a brief that “sex” already covered LGBT workers.
But backers said after the decision that the bill still needs to become law because it also expands LGBT anti-discrimination protections to housing, health care, financial decisions, education and more.
It has stalled in the Senate, and Republicans have said it could undermine the 1993 religious freedom law.
“We’re now protected from discrimination at our jobs, but we have much left to defend,” said Rep. Mark Pocan, an openly gay Wisconsin Democrat. “From housing to healthcare, we need equity in all areas of American life.”