So far, our legal series has tackled executive power and immigration law—something that has become extremely relevant lately—and reproductive law and the supreme court. Today, we’re here to talk about another area of civil rights that has seen a great deal of advancement under the Obama administration and where people are particularly on alert in the new administration: the rights of Gay, Lesbian, Bisexual and Transgender people. Amazingly, this discussion will include actual good news. There are several different aspects here, so we’ll get to the good news very shortly. But first, as always, a bit of background.
Many rights and protections for LGBT individuals, as well as discriminatory laws such as “bathroom bills,” don’t come from the federal government; they come from states. Similarly, most of the rights and benefits of being married comes from state law too. All laws vary from state to state. For instance, how a married couple owns property in Oregon is different than how they own it in California. This is good news for LGBT people in general because it means there are actually not a lot of federal protections that people like Trump, Pence and Congress can take away, though they’re sure to try. There are three areas where LGBT people are expressing the most concern: marriage equality, employment discrimination and so called “religious freedom” protections. Let’s look at these individually.
Nationwide marriage quality was achieved through the Supreme Court in 2015. Trump is on the record, for whatever that’s worth, saying that marriage equality is settled law and he has no plans to go after it. That’s good because he’s correct: it is settled law and it would be extremely difficult to undo it. Obergefell v. Hodges was decided by a 5-4 vote, and all five of those justices are still on the court. Additionally, any suit seeking to invalidate the decision would be met with difficulty, as no one is in an easy position to do sue to undo it.
A state could refuse to obey the ruling and get sued for that, but I don’t think that’s likely, and it still might not bring the actual issue of marriage equality before the courts. Public opinion in support of marriage quality is as high as it’s ever been and that might not be a battle the bad guys want to face and lose.
Another bulwark for marriage rights is the fact there is more than one case on the issue. The other very important decision is the United States v. Windsor case, which held the federal government had to acknowledge same-sex marriages from states where they are legal. This was extremely important for same-sex couples in terms of things like filing taxes and social security benefits. The fact that marriage benefits were broken into two cases also means it’s even harder to undo those. Windsor has also had other positive effects, as we’ll see.
Many states have passed laws protecting LGBT people from discrimination in employment, but there is no analogous federal law. The Employment Non-Discrimination Act (ENDA) has languished in Congress for over a decade and never been voted on. Obama issued an executive order stating that federal agencies and contractors could not discriminate in hiring and, shockingly, Trump has extended this order. That’s another bit of good news, though LGBT people rightly wish there were more protections. And that’s happening too, just not quite the way one might expect.
This will get pretty far into the legal weeds, but bear with me. Employment discrimination based on sex is already illegal under Title VII of the Civil Rights Act of 1964, referred to as Title VII for short. The Supreme Court has held that this does not apply to sexual orientation, but that is does apply to gender identity. That’s actually huge, and not well known. In this way, transgender people have more protections than gay people under current federal law. But wait, there’s more! Despite the Supreme Court ruling that Title VII doesn’t apply to sexual orientations, in light of Windsor and thanks to some legal mental gymnastics, lower courts are beginning to extend Title VII protections to sexual orientation anyway. Perhaps even more important than that, the Equal Employment Opportunity Commission, the federal agency that enforces workplace civil rights laws, changed their position in 2016 to reflect this shift and now holds that Title VII covers sexual orientation. Trump has not moved to change the make up of the EEOC despite the opportunity to do so, so this position is not likely to be reversed.
So, this is all actually good news for the LGBT community. Now for the bad news.
The new frontier in discrimination is hiding it behind “Religious Freedom.” Already the law in some states like Indiana—and the subject of a rumored executive order—these laws would allow for people to be denied service based on the religious conviction that certain behaviors are wrong. This would obviously be very ignorant, disruptive and massively unconstitutional. At a federal level, if this is carried out as an executive order, it cannot contradict existing law (or the constitution) and might be unlawful on many counts right out of the gate.
An actual law would be different, but is much harder to get on the books. No such attempt to protect “religious freedom” has made it in front of the Supreme Court, but it’s possible it would not withstand constitutional scrutiny. The court has been extending the standard to which it holds laws related to sexual orientation in recent years, and since this proposed law might cover more than just gay people, while including unmarried couples and transgender people, it might face an even tougher time in the courts.
Perhaps it could set a standard that would allow federal employees to refuse any action based on their religious conviction… maybe for example, turning away refugees that Jesus would have welcomed with open arms? If the order is signed, it should be met swift and immediate protests and lawsuits.
So, what do we do? Get informed. Find out what the laws are in your state. Make sure you know who your congresspeople and senators are and express to them what you feel is important. Also, see what your state and local governments are doing to protect LGBT people. If you experience discrimination, don’t just let it slide; contact the EEOC or an attorney. And as always, keep up the conversation. The enemy of hatred will always be empathy.
(image via Flickr/torbakhopper)
Jessica Mason is a writer and lawyer living in Portland, Oregon passionate about corgis, fandom, and awesome girls. Follow her on Twitter at @FangirlingJess.
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