Depending on where you live in the United States, you can still be fired from your job for being gay or transgender. But a trio of new U.S. Supreme Court cases could provide all LGBTQ Americans with workplace protections for the first time — or leave them all vulnerable to workplace discrimination.
The Court heard arguments last week about whether the landmark 1964 Civil Rights Act bars employment discrimination based on sexual orientation and transgender status.
Title VII of the 1964 Civil Rights Act prohibits workplace discrimination on the basis of “race, color, religion, sex, or national origin,” but whether the reference to “sex” applies to sexual orientation and gender identity has long been a point of contention.
About half of the nation’s federal circuit courts already interpret Title VII to include protections for LGBTQ individuals, including the 9th U.S. Circuit Court of Appeals, which includes Arizona. But Arizona state law does not provide any legal protections for LGBTQ workers, and should the Supreme Court rule that “sex” does not extend to lesbian, gay, bisexual or transgender workers, it would effectively legalize employment discrimination against LGBTQ people, impacting roughly 250,000 Arizonans.
The state also does not prohibit housing discrimination based on sexual orientation and gender identity, nor does it have laws addressing discrimination against or harassment of students based on sexual orientation and gender identity.
Peter Renn, counsel at Lambda Legal, said that if the court rules on the side of employers in the three cases it heard, it could also lead to an increase in anti-LGBTQ housing discrimination and harassment of students, with no legal recourse for victims.
Renn said protection varies from city to city, with Phoenix offering complete protections and Scottsdale offering almost none. Currently, only 31% of Arizona’s population is protected against discrimination based on sexual orientation or gender identity in private employment, housing, and public accommodations, according to the Movement Advancement Project, an independent, nonprofit think tank.
Phoenix native Juan Hinojos, who protested outside the Supreme Court last week, told KTAR it was “mind-boggling” that LGBTQ people can get married in the U.S. but still don’t have concrete workplace protections. “Everyone deserves every right in the workplace, wherever it is,” said Hinojos, who now lives in Washington.
A 2018 Human Rights Campaign report found that 46% of LGBTQ workers say they are closeted at work, while 1 in 5 have been told or had coworkers imply “that they should dress in a more feminine or masculine manner.”
Workers also continue to be fired for their gender identity or sexual orientation; the three cases heard last week involved a transgender worker in Michigan and two LGBTQ workers in Georgia and New York, all three of whom were fired because of their gender identity or sexual orientation.
Across the country, 20% of LGBTQ Americans have experienced discrimination based on sexual orientation or gender identity when applying for jobs according to a 2017 report from the Robert Wood Johnson Foundation, a nonprofit, philanthropic organization.
Transgender workers are particularly likely to experience discrimination; in 2015, more than one-in-four (27%) transgender people said they were not hired, were fired, or missed out on promotions due to their gender identity or expression.
Hinojos wasn’t alone outside the Court last week, he was joined by dozens of other supporters and representatives from organizations such as the American Civil Liberties Union and the Stonewall Alliance.
“This is going to be one of the most important decisions from the Supreme Court since marriage equality,” said Zeke Stokes, a spokesperson for GLAAD. He pointed to the 26 states without workplace protections for LGBTQ workers, telling KTAR “You can get married in those states by Saturday and can be fired from your job on Monday, and we have to correct that injustice.”
Those opposed to the broader definition of “sex,” including Christiana Holcomb of the Scottsdale-based Alliance Defending Freedom, also made their voices heard. Holcomb predicted “chaos” in schools and the workplace if the court accepts that definition.
Other counter-protestors argued that employers should have the right to decide “who gets hired and who gets fired” based on their religious beliefs.
There were more supporters though, including the now-retired Mary Kay Wallk, who told KTAR she attended because she remembered a time when workplace discrimination was rampant. “I spent 25 years in the Illinois National Guard in the closet,” Wallk said. “Fortunately, I wasn’t kicked out and had a career, then I was able to marry my wife of 28 years.”
She added that in her experience, “Even if you stay in the closet, if you don’t have that ‘normal’ gender look, you could be fired.”
LGBTQ advocates aren’t holding their breath that the conservative-leaning court will rule in their favor, but Renn said there “is still reason for optimism.” “The overwhelming majority of Americans believe LGBT employees should be protected, and that momentum is powerful,” he told KTAR.
A 2018 poll from the Public Religion Research Institute found more than seven in ten (71%) Americans say they support laws that would protect LGBTQ people against discrimination in employment, housing, and public accommodations.
In Arizona, 60% of voters support banning job discrimination against LGBTQ people, according to a 2017 poll from Hart Research Associates.
Support for LGBTQ Arizonans isn’t just confined to polls; 50% of Arizona voters chose to elect Sen. Kyrsten Sinema (D-Ariz) in 2018, making her the first openly bisexual and second openly LGBTQ person elected to the U.S. Senate.
State law continues to lag behind popular opinion, however. It wasn’t until this year that Arizona repealed its famously discriminatory “no promo homo” law which prevented LGBTQ students from receiving medically accurate information in their schools’ sex education classes.
While that was a victory for LGBTQ rights, advocates suffered a setback in September, when the Arizona Supreme Court granted businesses a right to discriminate against same-sex couples. In a 4-3 vote, the court ruled that businesses can refuse to sell custom wedding invitations to gay customers, creating an exemption to Phoenix’s human rights ordinance that bars public accommodations from discriminating on the basis of sexual orientation.
The decision is rooted in the Arizona Constitution, protecting it from review by the U.S. Supreme Court. But the highest court in the land can deliver a victory for LGBTQ individuals should it decide that the Civil Rights Act prohibits workplace discrimination on the basis of sexual orientation and gender identity.
The court is not expected to issue a ruling in the cases until early-mid 2020.
Keya Vakil Keya is a reporter at COURIER, where he covers everything from healthcare to climate change. Prior to joining Courier Newsroom, Keya worked as a researcher in the film industry and dabbled in the political world.
