Did you know that, one year ago, on June 15, 2020, the United States Supreme Court handed down a landmark 6-3 decision for LGBTQ+ employees in Bostock v. Clayton County? In that decision, the Supreme Court held, for the first time, that the prohibition in Title VII of the 1964 Civil Rights Act against the discrimination of an employee based upon sex applies to prohibit discrimination based upon sexual orientation and gender identity. This means that federal law prohibits qualifying employers from discriminating against, or taking adverse employment action against, an employee on the basis of their sexual orientation or their gender identity.
While this opinion may be limited to the federal law of Title VII, the Supreme Court’s decision has been extended by many states to their own anti-discrimination laws. Although 49 out of 50 states have their own anti-discrimination laws, most of them are similar to Title VII in that they only specifically prohibit discrimination based upon “sex” or “gender” and do not specifically prohibit discrimination based upon sexual orientation or gender identity. In 27 states, there are no prohibitions on discrimination based upon sexual orientation and gender identity in employment, housing, or public accommodations. This means that, in those 27 states, a person can be fired, evicted, or refused service for being gay.
In some of the states that do provide protections for their residents similar to Title VII, a few have explicitly applied the Bostock holding to their laws. Arizona, Florida, Kansas, Nebraska, North Dakota, Pennsylvania, and Texas have made clear that their anti-discrimination laws will adhere to the Bostock decision. With no express protection for sexual orientation and gender identity in many laws, some local municipalities are taking matters into their own hands and writing their own anti-discrimination ordinances to protect their residents. For anti-discrimination activists and proponents of the LGBTQ+ community, these decisions are all steps in the right direction but they will not be satisfied until the laws themselves specifically identify sexual orientation and gender identity as protected classes.
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