Bostock v. Clayton County, Georgia has rightly been heralded as a true milestone for LGBTQ rights, including by my colleague Alok Nadig, who describes the decision here. Bostock brings LGBT Americans into the fold of Title VII’s protections against discrimination “because of sex” and has important ramifications with regard to other federal laws adopting similarly-worded prohibitions against gender discrimination. For the first time, LGBTQ people in all 50 states enjoy protections against employment discrimination—and likely other forms of discrimination, such as housing discrimination prohibited by the Fair Housing Act.
Nevertheless, because of lingering uncertainty regarding the effects of the decision, it is vital that LGBTQ rights advocates and supporters of equality do not rest on their laurels and that they continue to push for passage of the Equality Act. See https://www.hrc.org/resources/the-equality-act; https://www.congress.gov/bill/116th-congress/house-bill/5
First, although perhaps unlikely, given the broad-based support for the Equality Act, the Bostock decision is susceptible to being undone by legislation amending Title VII and similar laws. And, the administration has shown a penchant for ignoring court decisions and attempting to roll back protections by executive order or by agency rulings and guidance.
Just days before the Bostock decision, on Friday, June 12, the administration finalized a rule that attempts to remove non-discrimination protections from LGBTQ people when it comes to health care and health insurance. HHS Finalizes Rule on Section 1557 Protecting Civil Rights in Healthcare, Restoring the Rule of Law, and Relieving Americans of Billions in Excessive Costs; Transgender Health Protections Reversed By Trump Administration To be sure, under Bostock, which characterizes Title VII’s prohibition on discrimination “because of sex” as unambiguous in its application, the Affordable Care Act’s prohibition of sex discrimination would likely trump the new HHS rule.[1] However, agency rules and regulations such as these inject uncertainty that calls for legislative action.
Second, while Bostock’s logic and reasoning almost certainly extend to certain other laws such as the Fair Housing Act, some institutions could attempt to resist the necessary implications of the decision until a court explicitly rules on the issue. It could take years for cases to bubble up through the court system in particular contexts.
Third, Bostock explicitly leaves several open questions—including those regarding the intersection of employment protections for LGBTQ individuals with employer claims of religious freedom. The Equality Act helps to plug the hole and to provide a framework for the resolution of such questions by limiting the reach of the Religious Freedom Restoration Act. This provision may be seen to follow from the Supreme Court’s observation in Masterpiece Cakeshop, Ltd. v. Colorado Rights Comm’n, 138 S. Ct. 1719 (2018) that the First Amendment’s free exercise clause creates no broad religious veto to generally-applicable public accommodations laws,[2] although the Court there left the implications unresolved. Carving out a blanket religious exemption for non-religious business entities would effectively undo anti-discrimination protections entirely—by allowing any entities that want to discriminate against LGBTQ workers, students, and others to couch their actions in religious terms.
Fourth, and perhaps most critically, some federal anti-discrimination laws do not presently incorporate protections against gender discrimination—most notably Titles II, III, and VI of the Civil Rights Act of 1964. Title II, 42 U.S.C. §§ 2000a, et seq., bars discrimination in public accommodations; Title III, 42 U.S.C. §§ 2000b, et seq., bars discrimination in public facilities; and Title VI, 42 U.S.C. §§ 2000d, et seq., bars discrimination in federally-funded programs (Title IX covers only educational programs). This means that, in many states, LGBTQ people can still be subject to discrimination in the provision of basic goods and services and other aspects of daily life. The Equality Act would fill the gap by inserting protections against discrimination on the basis of sex (including sexual orientation and gender identity). Quite simply, this is not an issue that can be resolved through judicial interpretation of existing laws but requires legislative action.
As the Human Rights Campaign states, “there is still work left to be done. In many aspects of the public square, LGBTQ people still lack non-discrimination protections, which is why it is crucial that Congress pass the Equality Act to address the significant gaps in federal civil rights laws and improve protections for everyone.” https://www.hrc.org/blog/hrc-supreme-court-is-on-right-side-of-history-for-lgbtq-rights[3]
Ultimately, Bostock should not detract from efforts to pass the Equality Act but should provide a much-needed impetus to finally push it across the finish line.
Footnotes
[1] The ACA’s nondiscrimination provision, 42 U.S.C. § 18116, incorporates by reference Title IX, which in turn forbids discrimination “on the basis of sex.” 20 U.S.C. § 1681. While Title IX is limited to educational programs receiving federal financial assistance, 42 U.S.C. § 18116 lifts Title IX’s prohibition on sex discrimination and applies it to all health programs administered by a federal agency or receiving federal financial assistance: “[A]n individual shall not, on the ground prohibited under . . . Title IX of the Education Amendments of 1972 . . . be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any health program or activity, any part of which is receiving Federal financial assistance . . . .”
[2] Id. at 1727: “while those religious and philosophical objections [to gay marriage] are protected, it is a general rule that such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.”
[3] The ACLU has issued a similar statement. https://www.aclu.org/news/lgbt-rights/supreme-court-says-firing-workers-because-they-are-lgbtq-is-unlawful-discrimination/