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February 16, 2020

LGBTQ workplace protections hinge on imminent High Court rulings

Two of the nation’s most prominent equal rights advocates – Diana Flynn of Lamda Legal and Chase Strangio of the ACLU – await with some pessimism potentially historic rulings from the U.S. Supreme Court that will have significant ramifications on the LGBTQ+ community.

Sometime between now and late June, the High Court will issue its decisions on LGBTQ protections under Title VII that could reshape federal discrimination law.

Last fall, the justices heard oral arguments in three employment cases that seek to determine if Title VII — which forbids workplace discrimination on the basis on sex, race and color, among other factors — extends to discrimination based on sexual orientation and gender identity.

In two of the cases, the plaintiffs are gay men who allege they were fired because of their sexual orientation. In the third one, the plaintiff alleges she was let go from her job because she’s transgender.

Flynn and Strangio explained why their glass seems half empty at “LGBTQ+ State of the Union,” held Feb. 15 at the American Bar Association Midyear Meeting in Austin, Texas.

Both lawyers are fierce advocates for the LGBT community, rising to national prominence in the last several years. Both are recognized with the ABA Stonewall Award for their notable work.

Flynn is the former Justice Department official who led the Civil Rights Division’s efforts on the brief for Obergefell v. Hodges, the Supreme Court case that established same-sex marriage nationwide. She is now litigation director for Lambda Legal.

Strangio began working at the ACLU is 2013, quickly making his mark there. He was lead counsel for the team representing transgender U.S. Army soldier Chelsea Manning, and he was also part of the team suing on behalf of transgender student Gavin Grimm, who was denied access to the boys' restrooms at his school in Virginia.

Flynn said she was taken aback during the oral arguments by the mischaracterizations she heard about the LGBTQ+ community. “It’s this so-called ‘parade of horribles’ that implied the possibility of a massive social upheaval if you apply Title VII in this fashion,” she recalled.

Strangio expressed concern about the sway of such arguments on the conservative justices, particularly in the case involving a transgender plaintiff -- R.G. & G.R. Harris Funeral Homes V EEOC & Aimee Stephens.

“The reality is that the law in a majority of the federal circuits has been for a very long time inclusive of trans people,” he noted. “Yet the conservative voices on the Court believe there will be some kind of social upheaval if they allow trans people, in particular, employment rights.”

“It’s hard to tell where the justices are leaning,” Strangio said. But “I think no matter what happens, we are not going to get a win that feels whole.”

The advocates’ pessimism may stem from the longtime fight for LGBTQ rights, which has been especially difficult for the transgender community.

Among struggles, only recently have states begun to ban the “gay panic” defense, which was often used to justify criminal actions against transgender victims. 

Co-panelist Judith O’Kelley, chief program officer for The National LGBT Bar Association, said that following a 2013 ABA resolution encouraging jurisdictions to bar the defense, several states are adopting the measures including California, Illinois, Rhode Island, Nevada, Connecticut, Maine, Hawaii, New York and New Jersey. And legislation is pending in Washington, D.C., Minnesota, Pennsylvania, Texas, Massachusetts, Wisconsin, New Mexico, Washington state, and Maryland. 

But the fight for equal rights remains an uphill battle. 

A fourth panelist, Fred Smith Jr, an associate professor of law at Emory University, explained that certain laws passed at the state level can mitigate progress made on the local level.

While an increasing number of cities, small towns and suburban communities across the country are passing laws that protect transgendered workers in employment, states can enact contrary ones – so called “anti-urbanism” measures, Smith said. He provided the example of gun control, in which 45 states have passed laws that preempt ones from cities and towns.

“Think about the HB2 ordinance in Charlotte (N.C.),” further cited Smith. “When officials there passed the anti-discrimination ordinance, there was this hostile state response to that.”

The panelists understand how the imminent High Court decisions will similarly reverberate.

In particular, they are concerned about the rulings’ impact on other discrimination prohibitions, including a new wave of bills across the country that target transgender youths. 

Smith reported an uptick in bills calling for criminal bans on certain provision of healthcare for trans minors and bills targeting transgender athletes, such as an Arizona measure that would ban transgender females from competing in women’s sports.

“There are currently 15 of these bills in 16 states aimed at trans athletes and I think they’re likely to move through the state legislatures,’’ Strangio said. “These bills would bring devasting harms to the transgender community.”

The program, presented by the ABA Commission on Sexual Orientation and Gender Identity, as part of the Defending Liberty Pursuing Justice Summit was moderated by Victor M. Marquez, a partner in the San Francisco office of Squire Patton Boggs. Judith O’Kelley, chief program officer for The National LGBT Bar Association, also participated in the panel.