- In a 6-3 decision on Monday, the Supreme Court ruled in favour of employment protections for LGBTQ workers falling under Title VII of the 1963 Civil Rights Act.
- With employers prohibited from discriminating against anyone on the basis of their sexual orientation or gender identity, some LGBTQ legal experts are confident the decision will have a “chilling effect” right away on employers making such decisions.
- But for the Trump administration, it’s a different story.
- The Trump administration has already rolled back or dismantled at least 31 measures from the Obama administration meant to protect LGBTQ Americans from discrimination.
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A landmark Supreme Court decision enshrining workplace discrimination protections for LGBTQ employees on Monday is bound to bump up against the Trump administration’s opposite stance.
Since President Donald Trump took office in 2017, his administration has rolled back or rescinded at least 31 measures put in place by the Obama administration to protect LGBTQ Americans from discrimination, according to a ProPublica analysis.
Some of those reversals include:
- Banning transgender people from serving in the military.
- Reversing the Department of Justice’s position that the Civil Rights Act protects transgender people from workplace discrimination.
- A Jeff Sessions memo arguing employers can legally discriminate based on sexual orientation and gender identity.
- Withdrawing the federal government’s challenge to an injunction against a Title IX guidance that would allow transgender athletes to compete under their gender identity instead of what they were assigned at birth.
- Eliminating Obama-era protections prohibiting sex-based stereotyping by health providers.
- Shifting the HHS Office for Civil Rights’ emphasis from promoting “equal access” for patients to the protection of “conscience and free exercise of religion” for medical providers.
- Gutting Obama-era protections giving transgender people equal access to homeless shelters.
- Allowing adoption and foster care agencies to turn away prospective parents who are LGB or transgender.
And just last Friday, the Trump administration rolled back Obama-era health care protections for transgender patients.
Federal law has changed now that the Bostock v. Clayton County decision on Monday includes LGBTQ employees under Title VII of the Civil Rights Act.
Yet Trump’s manoeuvres – such as the transgender military ban – are still on the books, and they aren’t going anywhere until one of two things happen, according to legal experts who spoke with Insider.
Court challenges could overturn the measures, with the process taking months and years.
Or they could be changed by the Trump administration through various agencies to make the policies comply under the new interpretation of the law.
Some legal experts are not so optimistic about the latter.
“Based on what we’ve seen over the last three and-a-half years, I’d be shocked if anything had been changed,” Sasha Buchert, a senior attorney with Lambda Legal and a trans woman, told Insider.
Sharita Gruberg, the senior director of the LGBTQ Research and Communications Project at the Centre for American Progress, was equally pessimistic on that front.
“Given every single attack they have had on the LGBTQ population, including [Friday’s transgender health care rollback], I don’t believe that’s what they’re gonna do,” Gruberg told Insider. “And we are going to have to fight to roll back every single one of these attacks.”
Gruberg and Buchert both said they’re confident the court battles will be successful, given the SCOTUS decision, but a faster way to get those provisions reversed would come in a Biden administration.
“It’s the difference between an administration that has already taken the stance that LGBTQ people should be protected … as opposed to this administration, where I would not be surprised if they double down and decide to fight every step of the way,” Gruberg added.
Outside of the federal government, Buchert noted that the Bostock decision will have an effect on businesses and states that have ignored or fought against discrimination protections for LGBTQ employees.
“The top line important thing, in my opinion, is that people have unambiguous protections under the law,” Buchert said. “Along with that, the importance of preventing discrimination from happening in the first place, and in line with preventing employers from discriminating, I think that it sends a message to states that are trying to enact discriminatory laws … They better think twice.
“And it will have a serious impact on those who wish to roll back protections for LGBT people based on their animus towards us.”