Challenging Discrimination by the Government, Employers, Landlords, and Businesses
The earliest cases involving sexual orientation discrimination all were brought by government employees because, in those, claims could be brought under the Constitution for violation of due process, free speech, and equal protection rights. Some dismissals of lesbian, gay, and bisexual employees were overturned on due process grounds as arbitrary and capricious because their off-duty conduct was not shown to impair the organization’s work. In 1984, a federal appellate court invalidated an Oklahoma law barring public school teachers from advocating in favor of private homosexual activity, ruling it fatally overbroad in violation of the First Amendment. The Supreme Court then affirmed that decision by an equally divided court. Eventually, equal protection challenges, reforms to federal civil service laws, and federal and state executive orders barring sexual orientation and subsequently gender identity discrimination against government employees ended most such disputes.
As the nation’s largest employer, the U.S. military’s bans on service by LGBTQ people gave rise to the most litigation. While a few challenges succeeded in allowing military service by lesbian, gay, and bisexual individuals, these led to the adoption of a “Don’t Ask, Don’t Tell” rule. It took congressional action to end that policy. A later executive order barring enlistment by transgender individuals took subsequent presidential action to repeal.
Municipal and county ordinances barring discrimination in employment, housing, and public accommodations began to be passed in the 1970s, but in many parts of the country, they faced heated opposition and a concerted backlash. Repeals of such ordinances at the ballot box occurred in Dade County, Florida, and numerous other local jurisdictions. In 1996, however, a statewide measure to bar such ordinances was struck down by the Supreme Court as violating the Equal Protection Clause in Romer v. Evans. That decision helped spur the passage of anti-discrimination laws at both the local and state levels, to the point that we now have state laws expressly barring sexual orientation discrimination in employment, housing, and public accommodations in 22 states and expressly barring gender identity discrimination in 21, as well as more than 400 local ordinances providing similar protections.
In a majority of states, however, there is still no state law expressly prohibiting discrimination by private employers, landlords, or businesses against LGBTQ people. Longstanding efforts to pass comprehensive national nondiscrimination protections still have not succeeded as of this writing. Nonetheless, in 2020, in a ruling with sweeping implications for other federal nondiscrimination laws, the Supreme Court held in Bostock v. Clayton County that Title VII’s ban on sex discrimination in employment necessarily protects against sexual orientation and gender identity discrimination.
Obtaining Legal Recognition of Same-Sex Relationships
A number of local governments again led the way in providing recognition to same-sex couples as “domestic partners” and providing health-care benefits to the partners of their employees in same-sex relationships. California passed the first statewide domestic partnership law, and state constitutional claims gave rise to civil unions in Vermont and New Jersey. An early victory in Hawaii was overturned by voters amending the state’s constitution. That was followed by amendments of state constitutions in 28 states to preclude reliance on state constitutional protections in challenges to restrictive marriage laws. A victory under the Massachusetts Constitution in Goodridge v. Department of Public Health, however, made it possible for same-sex couples to marry in Massachusetts beginning in 2005, and similar state court litigation victories were won in California (temporarily overturned by an electoral vote), Iowa, and Connecticut.
The Supreme Court ruled in Windsor v. United States in 2013 that the federal government must treat marriages lawfully entered into by same-sex couples equally to those of different-sex couples. That led to a wave of federal victories striking down bans on same-sex couples marrying. Between judicial, legislative, and electoral victories, 24 states were permitting same-sex couples to wed when the Supreme Court ruled that all states must do so in Obergefell v. Hodges in 2015.
Fighting for the Rights of Transgender, Nonbinary, Gender-nonconforming, and Intersex People
Early efforts to secure the rights of transgender people centered on making it possible to obtain identity documents matching their gender identity, including amended birth certificates, driver’s licenses, and passports. Subsequent political efforts allowed nonbinary and gender-nonconforming individuals to obtain an “X” gender marker on some identity documents, and a lawsuit on behalf of an intersex individual prompted the State Department to make such a marker available on passports as well. Other affirmative litigation on behalf of transgender prisoners tackled mistreatment while incarcerated, including denial of necessary medical care. Subsequent litigation relied on Title VII, Title IX, the Fair Housing Act, and the Affordable Care Act, and for government employees, the Equal Protection Clause, to challenge discrimination in employment, education, and housing, as well as coverage of necessary medical care under employer insurance plans and Medicaid.
The last few years have seen a swell of legislative attacks on transgender people, especially transgender minors. Restrictions on the ability of transgender individuals—particularly transgender youth—to access single-sex facilities matching their gender identity, obtain gender-affirming care, and participate in sports consistent with their gender identity have resulted in numerous lawsuits. While most of these suits have led to injunctions against these laws and policies, these issues will continue to be litigated until the Supreme Court weighs in.
Religious Exemptions
As LGBTQ people gained protections against discrimination, some who wished to continue to deny equal treatment to LGBTQ people sought refuge in constitutional and statutory protections of freedom of religion. The Supreme Court largely sidestepped these issues in its rulings in Masterpiece Cakeshop v. Colorado Civil Rights Commission and Fulton v. Philadelphia. Ongoing cases involving the Free Exercise Clause, the Religious Freedom Restoration Act, and the scope of the constitutional ministerial exception and Title VII’s coreligionist exemption will determine whether protections against discrimination provide relief for LGBTQ people or not when dealing with religious institutions and with secular businesses whose owners assert religious objections to employing, housing, or serving LGBTQ people.
Those Too Often Left Behind
While dramatic progress has been achieved for the LGBTQ community in general; Black, Indigenous, and people of color; disabled; noncitizen; and low-income LGBTQ people remain the most vulnerable members of the LGBTQ community. Many have suffered horrific violence, police misconduct, unremedied discrimination, and poverty. Developing strategies to address the ways in which various grounds of discrimination intersect with and compound one another is a crucial part of the work ahead.
Conclusion
There’s a wonderful social media post I’ve seen that says, “People who wonder if the glass is half full miss the point. The glass is refillable.” The work of LGBTQ advocates and their allies has been spectacular, but it remains unfinished, with significant challenges remaining. That requires refilling the glass of legal and political advocacy to one day fulfill America’s promise of liberty and justice for all.