Xtra Weekly
4 min

Xtra Weekly: LGBTQ2 civil rights cases headed to the US Supreme Court

Men skinny-dipping, Lizzo, and The L Word. Here’s your Xtra Weekly, April 26

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The Supreme Court of the United States will review and decide, once and for all, if discrimination against LGBTQ2 workers should be covered under the Civil Rights Act.

The background 👉On Monday, the US Supreme Court announced that it will decide whether Title VII of the Civil Rights Act of 1964 guarantees protection from workplace discrimination to gay and transgender people. The act prohibits employers with 15 or more employees from discriminating against their workers on the basis of sex, religion, race, colour, national origin and religion.

The US Equal Employment Opportunity Commission states that the act extends protections to LGBTQ2 people, but the Trump administration has argued that it cannot be read to apply to discrimination based on sexual orientation or transgender status.

In response, the Supreme Court has agreed to hear three separate petitions to clarify whether Title VII covers anti-LGBTQ2 discrimination at the workplace.

So, what are the petitions? The petitions that will be presented are cases of employment discrimination based on sexual orientation and gender expression previously heard by some of the 13 US courts of appeals (lower courts), though the outcome of the hearings differ in each case.

The differences in the ruling of these cases and the interpretations of the Civil Rights Act by the lower courts have caused confusion, so the upcoming Supreme Court review hopes to settle this issue once and for all.

Omar Gonzalez-Pagan, senior attorney at Lambda Legal, a US organization dedicated to achieving full equality for LGBTQ2 people, said in a phone interview that when it comes to transgender people, there is more of a consensus in the lower court rulings that their rights are covered by the Civil Rights Act. For sexual orientation, however, the lower courts have been split on the matter of workplace protections because of the vague definition of what falls under the “sex” clause of the act, which, historically, was meant to address discrimination towards women.

So what does this Supreme Court hearing mean for LGBTQ2 people? Gonzalez-Pagan says these cases represent a very high-stakes moment for the LGBTQ2 community.

“If the court rules in favour of coverage, we will be able to cement already existing protections,” he says. But if the Supreme Court rules against it, “all of the victories [for LGBTQ2 rights] will be erased and the court will eliminate existing protections for people.” What’s more, the ruling will have consequences for LGBTQ2 people beyond workplace protections: “All these cases are rising in the context of employment but there are other forms of sex discrimination prohibitions under federal law that includes education, housing and health care.”

Timing is also an issue. The current US Supreme Court has a decidedly conservative majority following Justice Anthony Kennedy’s retirement last year and the appointment of Brett Kavanaugh as his successor. Kennedy, despite his largely conservative record, tended to rule in favour of LGBTQ2 civil rights.

“We have won before conservative judges, we have won before more liberal judges . . . we have won before all types of judges,” says Gonzalez-Pagan when asked about the likely outcome of the review.

The Supreme Court will make its decision between January and June 2020. Gonzalez-Pagan says people should continue to be engaged and understand what’s at stake. “Ultimately this is about ensuring that LGBTQ people can participate in life without discrimination,” he says.


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