After rendering a 33-page decision on workplace rights, the U.S. Supreme Court bestowed a capstone victory on the LGBTQ movement as it was envisioned by leaders just 10 years ago, raising questions about what will happen next — and even if the LGBTQ movement has largely achieved its chief goals.
The victory happened with little fanfare. Amid the coronavirus pandemic, members of the LGBTQ community didn’t swarm the Supreme Court to celebrate like they did with the marriage equality victories. Because of cancellations of Pride events due to coronavirus, the major victory wasn’t celebrated in Pride parades or festivals. Some Pride events were renewed at a time of national unrest, but the focus instead of LGBTQ rights was shifted to systemic racism and police brutality.
It didn’t help that President Trump’s response to the landmark decision was a vague acknowledgement that “we live with the decision.” In contrast, President Obama after the ruling for marriage equality in 2015 summoned the White House press corps to the Rose Garden to say in extended remarks the decision was a time when “justice arrives like a thunderbolt.”
Nonetheless, the U.S. Supreme Court ruling in Bostock v. Clayton County will go down in history for bestowing LGBTQ non-discrimination protections in the workplace and achieving a long-sought goal many viewed as the final frontier in the LGBTQ movement.
So is it over? The answer is a resounding “no” from LGBTQ rights advocates.
Rea Carey, executive director of the National LGBTQ Task Force, said in an interview with the Washington Blade on Tuesday, “we are not done by any stretch of the imagination.”
“We were nowhere near done when we won in Windsor in 2013, we were nowhere near done when we won Obergefell in 2015, and we’re certainly not done with our win last week,” Carey said. “I would add that we have a long way to go before we as a country realize full legal rights for LGBTQ people and their families.”
As the LGBTQ movement began to tally up victories, its leaders have already begun to expand their goals to tasks like banning conversion therapy, legalizing adoption by LGBTQ families as well as tackling intersectional issues, like ending barriers in immigration, Black Lives Matter and affordable health care. Transgender rights saw a victory in Bostock, but the community continues to struggle.
Annise Parker, president of the LGBTQ Victory Fund and longtime LGBTQ rights activist in Texas, identified those issues as still being on the table, calling the idea that the LGBTQ movement is over “extremely short-sighted and unrealistic.”
“In general, as we have seen, what the Trump administration has done in trying to dismantle rights of people all across the country, including LGBTQ people, the idea that ‘hey, we don’t have to worry about it anymore is a non-starter,” Parker said.
As a wife and mother with four children, Parker said barriers surrounding adoption by LGBTQ families, such a recently enacted rule from the Trump administration allowing taxpayer-funded adoption agencies to reject same-sex couples, remains a personal issue for her.
“There’s the law on the books, and then there’s the lived realities of people’s lives,” Parker said. “We can win lots of legal protections, but the lived reality can be different, as we have seen with Black Lives Matter…There’s still a lot of work to do with institutions around our lives.”
The goals of the LGBTQ movement weren’t always so broad.
About 10 years ago, former Rep. Barney Frank would often tell a story in public settings about a conservative lawmaker raising fears he’d enact with Nancy Pelosi the “radical homosexual agenda.” Frank acknowledged that charge was true, but then defined that agenda as the simple goal of being able to join the Army, get married and find a job. (Frank in a subsequent narration of the incident would amend that agenda to include protections from hate crimes.)
Frank’s remarks were tongue-in-cheek, but no one contradicted him. At the time, when LGBTQ people were hungry for any kind of victory, those goals were widely accepted as the correct parameters for the movement.
But if that’s the “radical homosexual agenda,” then it’s done. The Matthew Shepard & James Boyd Jr. Hate Crimes Prevention Act in 2009 instituted protections against hate crimes. “Don’t Ask, Don’t Tell” repeal the next year allowed openly gay people to serve in the military. The U.S. Supreme Court decision striking down Section 3 of the Defense of Marriage Act in 2013, then overturning state bans against same-sex marriage in 2015 brought full marriage rights.
And now, being able to get a job is secured for LGBTQ people thanks to the decision in Bostock v. Clayton County, which determined anti-LGBTQ discrimination is a form of sex discrimination, thus illegal under Title VII of the Civil Rights Act of 1964.
Speaking with the Blade on Monday, Frank said those remarks were “meant to make fun of the right wing,” but acknowledged those goals have been achieved, especially because the Bostock decision apples to more situations than just employment.
“They pretty much adopted the Equality Act because while it only applies in that case to employment, the best analogy here is the Supreme Court decision that separate but equal is unconstitutional,” Frank said. “The principle that where sex applies to sexual orientation and gender identity applies to any other subject. So any place in the wall where discrimination based on sex is outlawed, we’re covered. Credit, housing, etc.”
Frank said the Bostock decision “will take care of our legislative agenda,” but when asked if that will be the end of the LGBTQ movement, he conceded a few issues remain, especially for transgender people.
“We will have to go on the defense now against the effort to expand the religious exemption to give a license to discriminate,” Frank said. “So I don’t think we have to pass anything, we have to make sure they don’t get stuff through that broadens the religious exemption. And if the Supreme Court were to broaden the religious exemption, we would need a statute, we’d want to go after that, but I don’t think we’re likely to see that.”
In addition to saying “we’re pretty complete on the legislative side,” Frank said tremendous strides have been made for LGBTQ people in public opinion, which has enabled that legislative progress.
“I think prejudice based on sexual orientation — again, not gender identity — is beginning to resemble anti-Semitism in America,” Frank said. “Namely, still a problem with some people with bad attitudes that will occasionally act out on that, but in general and legally and increasingly politically, look around, you have Tim Cook, you had Pete Buttigieg, even the the informal barriers among most of the society have substantially eroded.”
Organizational leaders in the LGBTQ movement are one thing, but another is LGBTQ people and commentators, some of whom are saying the Bostock ruling was the final word on LGBTQ rights.
Andrew Sullivan, a gay conservative, anti-Trump commentator, disparages U.S. Associate Justice Neil Gorsuch in a column for New York Magazine for his “constrained” logic in ruling for LGBTQ rights, but concedes the Bostock decision was nonetheless “immediate and transformative.”
“Every single goal the gay-rights movement has set out to achieve in my lifetime has been won,” Sullivan writes. “Gays can marry; we serve our country openly with pride; we are categorically protected from discrimination in employment and public accommodations in every state. Many once thought it would happen in reverse order, with employment discrimination barred before civl marriage was extended to gays and lesbians, but history has its surprises. Nonetheless, it’s done. Finished. Accomplished.”
Transgender people may tell a different story. Despite the historic ruling in Bostock and its affirmation of transgender rights in the workplace, the battle certainly isn’t over for trans Americans, who don’t even yet have all the goals achieved as outlined by Frank’s tongue-in-cheek “radical homosexual agenda.”
Because of President Trump’s transgender military ban, transgender people aren’t allowed to join the military and serve consistent with their gender identity, nor do they have access to transition-related care, effectively blocking them from service.
Health care is another ongoing issue for transgender people. Affordability and access to care, including transition-related care and gender reassignment surgery, remain an issue, although that may soon be deemed unlawful as a result of the ban on sex discrimination in Section 1557 of the Affordable Care Act, which should apply to the law as result of the Bostock decision.
Violence against transgender people also continues (although lesbians, gays and bisexuals are still facing hate crimes because of their sexual orientation). The Human Rights Campaign and other transgender advocates keep a tally each year on people killed in the United States who identify as transgender.
Mara Keisling, executive director of the National Center for Transgender Equality, said despite the Bostock decision transgender people are still “disrespected, discriminate against and being killed.”
“While we come really far, this is not what the final victory looks like, not even close,” Keisling said.
The road going forward, Keisling said, would be to make sure the Bostock decision is implemented, then passage of the Equality Act, legislation she said would build on Bostock by banning anti-trans discrimination in federally funded programs, such as jails, prisons and immigration detention.
“We are years away from being finished,” Keisling said. “The stuff we’ve done so far is kind of the base that we now have to build a lot of really good stuff on. So, not to get all, but maybe this is end of the beginning, but it’s not the beginning of the end, yet. Certainly not the end.”
Prior to the Bostock decision, the flagship vehicle for achieving federal non-discrimination protections for LGBTQ people has been the Equality Act, which would amend the Civil Rights Act to define anti-LGBTQ discrimination as an explicit form of sex discrimination in addition to expanding the landmark law in other areas, such as broadening the definition of public accommodations.
But with the Supreme Court ruling, much of that work has been done. The decision relates to employment, but applies to all laws barring sex discrimination, such as those in housing, credit, jury service, health care and education. Any LGBTQ protections the Equality Act would institute where there is already a law against sex discrimination would be redundant.
Nonetheless, if the Equality Act were to become law, it would expand LGBTQ non-discrimination protections in public accommodations and federally funded programs, which are unaffected by the Bostock decision because no law prohibits sex discrimination in those categories. Also, it would make clear the Religious Freedom Restoration Act can’t be used in court to justify anti-LGBTQ discrimination.
Further, the Equality Act would expand the definition of public accommodations to include retail stores, banks, transportation services and health care service. A black youth followed in a store by a mall cop or a woman being charged more for car repairs, for example, would gain new legal recourse for discrimination.
There are no hints that talks are underway for LGBTQ advocates to abandon the Equality Act for another legislative vehicle,
Carey maintained enacting legislation at the federal level to bar anti-LGBTQ non-discrimination continues to be a high priority.
“As a movement we will be moving forward on securing full federal protections through Congress,” Carey said. “We have been working on this for years. We have expanded initially from the Employment Non-Discrimination Act. It now covers many more areas of potential discrimination, and that is where our focus will be.”
Asked if the Equality Act is still the right vehicle for that, Carey replied, “Yes.”