At the end of June, the Supreme Court of the United States issued a decision that makes it clear, once and for all, that discrimination on the basis of sexual orientation and gender identity is prohibited under the federal employment non-discrimination law known as Title VII. This is huge news for the LGBTQ community and has implications that will eventually reach civil rights laws forbidding discrimination in education, health care, housing and many more other areas.
What the Bostock decision does not do, however, is diminish the need to continue to advance pro-equality legislation, including in employment, at the state level. There are several reasons for why this is the case.
State non-discrimination laws are often more expansive than Title VII - Title VII, for example, only applies if an employer has 15 or more employees. States often include smaller employers in their non-discrimination laws, and they often include a more robust list of protected characteristics as well. State remedies are also often more robust, without the caps that apply to damages in Title VII, and of course state courts may provide a more accessible, affordable and favorable venue to a plaintiff. Further, state laws can also permit state actors to take action against an employer who has a pattern or practice of discrimination.
No law - not Title VII, not a state-level non-discrimination law - will actually prevent discrimination. Laws help serve as a deterrant for discrimination, and one of the ways they are effective in doing that is by educating the parties about what is expected of them. The legislative process in which a new discrimination law is considered, passed and put into effect affords an opportunity for people to learn about what laws currently prevent and why the changes proposed are important.
Once such a law is passed, an employer will want to update their employee handbook, conduct a training for supervisors about what the law requires, update their internal complaint processes, post notices informing employees about their rights and generally work to eradicate bad behavior that might result in consequences they’d rather not face. Along the way, some hearts and minds may begin to change.
Missing that opportunity in an over-reliance on Title VII would be a mistake. Bostock explains that discrimination on the basis of sex necessarily includes discrimination on the basis of sexual orientation and gender identity. However, without those words being explicitly enumerated, the general public might not understand that such discrimination is, in fact, prohibited. That’s why we need the Equality Act, which (among other important things!) would update the language of Title VII to reflect what it does. It is also why we need laws at the state level to be clear that discrimination against LGBTQ people is reprehensive and prohibited by law. One of the most important functions of a piece of legislation is the education that comes along with it. Relying on federal law and neglecting employment laws in the states will mean that these vital moments of education are missed.
Finally, consider this: the vast majority of states and D.C. already have such laws prohibiting employment discrimination for characteristics such as race, color, religion, national origin or sex, even though discrimination on those bases clearly is prohibited by Title VII. States understood the importance of banning that discrimination at the state level, too, for all of the reasons mentioned above. Sexual orientation and gender identity ought to be treated in the same way.
Beyond Employment: Housing, Places of Public Accommodation, Jury Service, Credit, Education and More
State and federal law both regulate discrimination that happens in areas other than employment - and state laws often have a scope that goes far beyond what is covered in federal law. State non-discrimination laws can prohibit discrimination in credit, in state jury service, in education, in state contracts, in foster care and adoption services and many more. Critically nearly all states prohibit discrimination in places of public accommodation - that is, places where any member of the public, so long as they’re not behaving badly, is allowed to enter and enjoy the space, services, or offerings of the establishment. From coffee shops to libraries to grocery stores to gas stations, places of public accommodation are the places in which we live our lives. The Bostock case, for all its power, extends no protections to LGBTQ people in places of public accommodation. State laws ensuring everyone has access to the spaces in which life is lived are as critical as they have ever been.
Bostock Won’t Prevent the LGBTQ cCommunity From Being Attacked With Anti-Equality Discrimination
We’ve seen a tidal wave of anti-LGBTQ legislation crash over the states since 2015, when Obergefell v. Hodges was pending before the United States Supreme Court. The concern over marriage equality imminently being the law of the land threw some state legislatures into a tizzy, resulting in a flurry of anti-equality legislation. Indiana considered a religious refusal bill (a Religious Freedom Restoration Act Bill, or “RFRA”) that earned the state international condemnation and cost it billions of dollars. The following year North Carolina passed the infamous HB2, an anti-transgender bathroom bill, to a similar result, and the wave of anti-LGBTQ legislation has continued to sweep over the country. 2020 had at least 66 anti-transgender bills filed in state legislatures, the largest number of anti-transgender bills filed in state legislatures ever and more than three times as many as were filed in 2019. SInce the Bostock decision came out we are already hearing that our opposition is gearing up to come at us with more anti-LGBTQ legislation. We anticipate seeing renewed efforts to push religious refusal bills as well as continued efforts to target transgender youth in sports and medical care. There’s no doubt that we will have to continue to play defense, because our opposition hasn’t given up - but neither will we.
It Is Critical That Efforts to Pass Non-Discrimination Laws Continue in the States
Discrimination against someone because of who they are - whether that’s because of the color of their skin, the country they were born in, their faith (or no faith), their sexual orientation, or their gender identity - is reprehensible and should be prohibited. While the Bostock decision is monumental in the effect it will have on federal employment non-discrimination law and beyond, it cannot be a replacement for continuing to ensure that states treat LGBTQ people’s right to be free from discrimination in the same way as they treat discrimination on the basis of other protected characteristics. We will have to defend the LGBTQ community against the attacks that our opponents will level at us in the wake of Bostock, and we also need to stay on offense, ensuring that our community is treated fairly under the law. We know there are still hearts and minds to be changed, and we cannot for a moment let up on our work to ensure that LGBTQ people have full protection under the law.