As of this afternoon, June 15, much of LGBTQ America and our allies are in a state of shock—and rapture. This morning, the Supreme Court (SCOTUS)—despite the recent addition of two judges, Gorsuch and Kavanaugh, seen as solidly right-wing—ruled 6-3 that existing law (specifically, Title VII of the 1964 Civil Rights Act) protecting people from workplace discrimination on the basis of sex covers LGBTQ people. That's based on the premise that discrimination against gay or transgender people in the workplace amounts to bias based on stereotyping, or the idea that men or women "should" behave (or dress or love) a certain way.
It's a ruling that echoes the decisions of lower federal courts in recent years, as well as of legal guidance issued by the Obama administration protecting LGBTQ folks that the Trump administration has steadfastly tried to overturn.
Essentially, today, the Trump administration's efforts to legally sideline LGBTQ (especially transgender and gender-nonconforming) people are dead, explains attorney Greg Nevins, director of the Employment Fairness Project at Lambda Legal, which has successfully argued most cases on the matter before the lower courts. Discriminating against LGBTQ people in the workplace is now against the law nationwide—including the roughly half of states who did not previously have their own law saying so.
Still not the law of the land? LGBTQ protections in public accommodations, such as restaurants or bathrooms.
We chatted with Nevins just an hour or so after the ruling to get more information.
Tim Murphy: Greg, thanks for taking a few minutes to talk to us on such a busy—and happy—day. Congratulations on this long-fought-for victory. How do you feel?
Greg Nevins: Exuberant! We're absolutely thrilled over here.
TM: Of course. So how surprising to you was the decision, given the more conservative make-up of SCOTUS in the Trump era?
GN: Actually not terribly surprising based on what Justice Gorsuch said in oral arguments late last year. He said he was worried about "massive social upheaval" that would follow if SCOTUS ruled in favor of discrimination. That was very off-brand of him because historically he has not mentioned the political consequences of rulings. I actually thought the court would rule in our favor 6-3, as they did, although I'm a bit more surprised by Chief Justice Roberts' voting in favor, because he did ask questions during arguments about religious objections.
TM: And indeed, SCOTUS has not yet ruled on this legally divisive question of whether people can refuse employment, services etc. based on religious objections. How much could such a future ruling in favor of religious objections impact or intersect with today's ruling?
GN: It's hard to answer if that would allow a potential carve-out [for folks to discriminate against LGBTQ on religious grounds]. This is partly why Congress still needs to pass The Equality Act [banning LGBTQ discrimination in all sectors of society], because the bill deliberately includes language saying that nondiscrimination is a "compelling interest," which sets a very high bar against religious exemptions.
TM: But to be clear, as of today, a ban on LGBTQ discrimination in hiring, firing or other workplace practices is now the law of the land in the U.S., yes?
GN: Yes, and as well for housing discrimination. But again, it definitely does not preclude the need for Congress to pass The Equality Act, because the bill includes a ban on discrimination in accommodations, such as the bathroom issue in North Carolina. Today's SCOTUS ruling brings sexual orientation and gender identity under the umbrella of sex discrimination in the Civil Rights Act of 1964, which does not include sex discrimination in public accommodations. So in states without laws banning such discrimination, LGBTQ folks are still vulnerable in that regard.
TM: Last week ended with many of us very upset that the Trump administration finalized a rule saying that transgender people were not protected in healthcare, as the Obama-era Affordable Care Act tried to ensure. Does the SCOTUS ruling mean that the Trump rule is out the window?
GN: It should, because the Affordable Care Act references Title IX to cover sex discrimination. We'll still be marching forward to make sure that everyone does the right thing based on this ruling, but we should have a slam-dunk argument against the Trump rule after today. The Trump administration would have to explain why such discrimination "on the basis of sex" was okay. But it's always possible that they won't give up on the argument.
TM: How do we make sense of this good-news ruling given how seemingly to the right SCOTUS has moved in the Trump era?
GN: Gorsuch is a conservative in many respects, but he also very much believes in interpreting the words of Title VII as they're written. He basically asked, "We didn't allow previous instances of discrimination against employees for not fitting certain sex stereotypes, so why should we allow this?"