Know Your Rights, No Matter What SCOTUS DecidesJune 11, 2020
I was in New York last summer during WorldPride, celebrating fifty years since the Stonewall riots. Despite the rise in hate crimes over the previous three years, for a little bit, I could just celebrate how far we’d come.
One year later, I find myself checking the Supreme Court website for updates on three pending cases about employment discrimination based on sex. In these three cases, the Supreme Court will consider whether discrimination based upon gender identity and sexual orientation are covered under Title VII of the Civil Rights Act of 1964. And considering the current makeup of the Supreme Court, I’m not optimistic. While we may know that these types of discrimination are morally wrong, it is not clear the Supreme Court will agree.
Here’s the bad news: About half of all LGBTQ+ people in the United States live in states without laws protecting against sexual orientation or gender identity discrimination.
And here’s the good news: About half of all LGBTQ+ people in the United States live in states with laws protecting against sexual orientation or gender identity discrimination.
These laws have been hard-fought and trace their roots back to the very beginning of Pride. I’d be remiss to talk about the history of Pride without paying tribute to the Black, trans activists that launched the modern LGBTQ movement. On June 1, the Transgender Law Center tweeted, “This first day of #PrideMonth2020, we urge you all to remember the Black trans leadership that launched the LGBTQ movement in the first place. Black trans women and other trans women of color fought back against police brutality at Stonewall and continue to do so now.” Fifty-one years later, we should be reflecting on how far we have come – or how far we have yet to go – as police violence against the Black community and against peaceful protests continues. And police brutality toward the LGBTQ community is far from over. According to the National Crime Victimization Survey, between 2012 and 2016, as many as 300,000 crimes of police violence against LGBTQ individuals went unreported. And even when police officers aren’t directly committing this violence, they often still mistreat LGBTQ+ individuals; a 2010 report by the National Coalition of Anti-Violence Programs discovered that 61 percent of LGBTQ+ violence survivors experienced “indifferent, abusive, or deterrent police attitudes” when they reported violent acts to the police.
So if you experience discrimination based on your sexual orientation or gender identity, know that you are not alone. Twenty percent of LGBTQ Americans have experienced discrimination based on their sexual orientation or gender identity when applying for jobs. And LGBTQ people of color are even more likely to experience this type of discrimination than their White counterparts.
Many of these laws also prohibit discrimination based on “actual or perceived” sexual orientation; this means that you are protected from sexual-orientation-based harassment or discrimination even if your employer is mistaken about your sexual orientation.
Transgender workers are often subject to different types of harassment than LGB workers. Gender identity discrimination can include – but is not limited to – bathroom accessibility, incorrect pronoun usage, and inappropriate questioning.
In some states – like California – laws exist that make it illegal for an employer to fire, fail to hire, or discriminate against you because of your sexual orientation or gender identity. These laws also prohibit sexual-orientation-based or gender-identity-based harassment. While one joke or slur about your gender identity – while rude and unfair – may not constitute illegal harassment, regular or persistent comments – or intentional failure to respect your pronouns – may.
Even if your state doesn’t have laws that protect against sexual orientation or gender identity discrimination, some localities have passed measures to address the issue. Some of the localities that have adopted these laws have agencies that investigate discrimination complaints. Make sure to check with your local laws to see how you may be protected.
No matter what the Supreme Court decides, you still have rights. If you’d like additional information, please visit legalaidatwork.org.
UPDATE: June 15, 2020:
And here’s the best (and most surprising) news of all: On June 15, 2020, the Supreme Court decided that discrimination based upon gender identity and sexual orientation are covered under Title VII of the Civil Rights Act of 1964. This means that all LGBTQ+ people in the United States now have laws protecting against sexual orientation or gender identity discrimination in the workplace.
I have never been happier that I was wrong.
*Tamar Alexanian is a law clerk at Legal Aid at Work and currently attends the University of Michigan Law School.
**Photo licensed under CC BY-SA 2.0.