On Tuesday, October 8, the Supreme Court heard oral arguments in what have been dubbed “the LGBT employment cases,” where two gay men, Donald Zarda and Gerald Bostock, and one transgender woman, Aimee Stephens, were fired from their jobs because of their sexual orientation and gender identity, respectively. These cases were before the court to answer the question “Does Title VII of the Civil Rights Act of 1964’s prohibition on employment discrimination ‘because of sex’ include protection from discrimination because of sexual orientation and gender identity?”
Over the past several decades, state and federal courts across the country have held that the meaning of “sex” in Title VII and other federal statutes includes both sexual orientation and gender identity. But the Trump administration has rejected this established precedent, the Department of Justice supported bringing these well-settled questions before a Supreme Court with a newly conservative majority.
If you read the transcripts or listened to audio of the arguments released this past Friday morning, you would have heard Solicitor General Noel Francisco begin his statement in the Zarda/Bostock case with an astonishing fact: only 21 states, plus the District of Columbia, Guam, and Puerto Rico, have passed legislation that explicitly protects LGBT workers from discrimination because of their sexual orientation or gender identity. This would be surprising to the almost half of all Americans who erroneously believe that there exists an explicit federal law prohibiting employment discrimination on the basis of sexual orientation and gender identity.
Sadly, Francisco is right (at least about this): 29 states provide no legal protection for LGBT employees from the stigma, bias, or bigotry of their employers who can legally fire, demote, or mistreat them based on their sexual orientation or gender identity. And if the Supreme Court rules next summer that federal law doesn’t protect them either, then more than half of the LGBT people living in this country could be fired for who they are.
Despite the cultural and legal significance of the Supreme Court’s 2015 landmark marriage equality decision in Obergefell v. Hodges, protections from discrimination in the workplace remain illusive for more than half of the estimated 11 million LGBT people living in the United States. Such a discrepancy between rights means that Andre can marry his husband Reggie on Sunday, and go to work and be fired for it on Monday. The reality is that while marriage equality is meaningful, employment protections have a much more concrete impact on where and how LGBT people can live, support their families, and become valuable members of their communities without fear of discrimination. And as it stands, there’s a substantial swath of the country where LGBT people lack state-level employment protections.
U.S. states with statewide LGBT non-discrimination laws in place as of October 2019. Image from Movement Advancement Project.
The resulting patchwork of rights for LGBT workers means that in Georgia, “a county employee who spent a decade of his career helping to build a program for neglected and abused children” could be fired for joining a recreational gay softball league in his off hours, just like Gerald Bostock. And in 29 states, a valued employee can be fired when she informs her employer that she will begin coming to work as the woman she is and adhering to the women’s dress code—which is exactly what happened to Aimee Stephens.
But even if the Supreme Court upends existing precedent (and the arc of history) and rules next summer that federal civil rights laws do not protect LGBT workers from discrimination based on their sexual orientation or gender identity, all is not lost. Far from it, in fact.
It isn’t just liberal coastal cities and large metropolitan centers that are stepping up to protect LGBT workers.
In the absence of federal protections, groups of advocates, community activists, legislators, and committed voters have been showing up to city council meetings, state government hearings, and most importantly, the polls, to make their values heard and reflected in their cities and states. The result: dozens of municipalities (and some states) have codified LGBT nondiscrimination protections at levels that exceed anything Congress has even considered in its failed efforts at passing nationwide legislation.
It isn’t just liberal coastal cities and large metropolitan centers that are stepping up to protect LGBT workers. Some of the most innovative and inspiring citizen-led ordinances are being passed in places that have (often unfairly) been painted as inherently anti-LGBT. Instead, these cities are proving to be an effective venue for passing inclusive employment nondiscrimination laws.
Percentage of state population protected by local LBGT non-discrimination ordinances, as of October 2019. Image from Movement Advancement Project.
Take, for example, the important work being done by cities in Georgia, one of the many Southern states without a statewide LGBT nondiscrimination law. In June, Dunwoody became the fifth city in Georgia to pass a nondiscrimination ordinance prohibiting sexual orientation and gender identity discrimination in private employment, housing, and public accommodations. This ordinance came on the heels of a similar ordinance passed in Doraville, Georgia, in November 2018, where the effort was particularly noteworthy because Doraville is a city of only 10,000 people and because the effort was shepherded by Stephe Koontz, Georgia’s only out transgender elected official. Encouragingly, Koontz reported that since Doraville passed its ordinance, at least six cities—including some outside the Atlanta metro area—have asked her for copies of the ordinance.
Meanwhile, cities in Alabama and Mississippi, two other states without LGBT-inclusive nondiscrimination laws, have passed laws to reflect the inclusive values of their communities. In Alabama, in 2017 and 2018, Birmingham and Montevallo each respectively passed a nondiscrimination ordinance to protect LGBT workers, and Mobile, Alabama, appears poised to do the same.
In Mississippi, the capital of Jackson and the small town of Magnolia (population 2,257 in 2018) were both recently joined by Clarksdale, a town known for its tourism and connection to the blues music tradition, in passing an ordinance to protect LGBT workers. These significant strides, in states where religious conservatives maintain a stronghold on state lawmaking, demonstrate the power and progress that can happen when individuals and small communities take legal reform work into their own hands.
The progress being made in these communities is why, at the end of the day, it doesn’t really matter what the Supreme Court ends up saying about whether or not they think federal civil rights laws protect LGBT workers. No ruling, even from the highest court in the land, will invalidate state and city-level protections, though such a ruling might make it more difficult to pass similar ordinances, or defend existing laws against right-wing legal challenges. What matters is what people in cities and states throughout this country say and do to create laws and policies in their communities that reflect the fairness to which everyone is entitled. What matters is people showing up to their city council meetings, voting in local elections, and ensuring that democracy at the local level continues to bend toward justice for all.
Carl S. Charles is a staff attorney with Lambda Legal, an oganization dedicated to advancing the civil rights of LGBTQ people and people living with HIV.