Simone Lawson
The legal landscape for LGBTQ+ rights in the US is ever-evolving, with the community gaining traction in America's constitutional dialogue and winning several victories in Supreme Court cases that struck down laws limiting their rights. While the Trump Administration argued that federal law does not protect LGBTQ+ individuals from discrimination in the workplace, the US Equal Employment Opportunity Commission (EEOC) has taken the position that LGBTQ+ people are protected under Title VII of the 1964 Civil Rights Act. The Supreme Court has also ruled that discrimination on the basis of sexual orientation and gender identity is sex discrimination, thus prohibiting this kind of discrimination in schools and housing.
| Characteristics | Values |
|---|---|
| Right to privacy | Schools cannot "out" students without their permission |
| First Amendment right to free expression | Applies to school dress codes, especially when there are different rules for boys and girls |
| Title VII of the 1964 Civil Rights Act | Prohibits employers with 15 or more employees from discriminating on the basis of sex |
| Title IX of the Education Amendments of 1972 | Bans discrimination on the basis of sex by public schools |
| The federal Fair Housing Act | Prohibits sex discrimination by most landlords |
| Due Process Clause of the Fifth Amendment | Protects against discrimination based on sexual orientation and gender identity |
| Fourteenth Amendment | Protects against discrimination based on sexual orientation and gender identity |
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What You'll Learn
The Supreme Court's Bostock v. Clayton County ruling
In the United States, the 14th Amendment states that:
> No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
In 1996, the Supreme Court's decision in Romer v. Evans struck down a state constitutional amendment that overturned local ordinances prohibiting discrimination against homosexuals, lesbians, or bisexuals. The Court found that the amendment was \"unusual\" in its departure from the traditional reliance on state law to define marriage, and that it aimed to impose "restrictions and disabilities" on a group that state law sought to protect. This set a precedent for the interpretation of the 14th Amendment as protecting citizens from discrimination based on sexual orientation.
In 2020, the Supreme Court's ruling in Bostock v. Clayton County furthered the precedent set by Romer v. Evans. The case was argued on October 8, 2019, and decided on June 15, 2020. The ruling found that sexual orientation and gender identity are "inextricably bound up with sex," and that discrimination on these bases involves the application of "sex-based rules." This interpretation was supported by several Circuit Courts, which stressed that sex, sexual orientation, and gender identity are related concepts.
The ruling specifically addressed three cases in which an employer allegedly fired a long-time employee for being homosexual or transgender. In the first case, Gerald Bostock, a child welfare advocate for Clayton County, Georgia, was fired for conduct "unbecoming" of a county employee shortly after he began participating in a gay recreational softball league. The second case involved Donald Zarda, a skydiving instructor who was fired after coming out as gay. The third case concerned Aimee Stephens, who was fired from her job at a funeral home after beginning her gender transition.
The Supreme Court's ruling in Bostock v. Clayton County established that Title VII of the 1964 Civil Rights Act, which prohibits employers with 15 or more employees from discriminating based on sex, also prohibits discrimination based on sexual orientation and gender identity. This interpretation has been supported by the U.S. Equal Employment Opportunity Commission (EEOC), which has taken the position that LGBTQ individuals are protected under Title VII.
The Bostock v. Clayton County ruling has had significant implications for LGBTQ rights in the United States, including in the areas of employment, housing, and education. In the context of housing, the ruling has been interpreted to mean that the federal Fair Housing Act, which prohibits sex discrimination by landlords, also prohibits discrimination based on sexual orientation and gender identity. In education, the ruling has been applied to Title IX of the Education Amendments of 1972, which bans sex discrimination by public schools, to prohibit discrimination based on sexual orientation and gender identity in schools.
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Title VII of the 1964 Civil Rights Act
The Supreme Court's ruling consolidated multiple cases, including Bostock v. Clayton County, where an employee claimed he was fired because he was gay. The ruling means that federal employment protections apply to LGBT individuals, and employers cannot discriminate against employees on the basis of sexual orientation or gender identity.
While Title VII does not explicitly mention sexual orientation or gender identity, the Supreme Court's interpretation of the law now includes these protections. This interpretation is significant because it ensures that LGBT employees are protected from discrimination in the workplace under federal law.
In addition to Title VII, the Fourteenth Amendment of the U.S. Constitution also provides some protection against discrimination for LGBT individuals. The Equal Protection Clause of the Fourteenth Amendment states that no state shall "deny to any person within its jurisdiction the equal protection of the laws." This clause has been interpreted to mean that states cannot discriminate against individuals based on their sexual orientation.
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Title IX of the Education Amendments of 1972
The rights of LGBTQ+ students are also protected by the First Amendment, which applies to school dress codes, particularly when different rules are applied to boys and girls. Additionally, the constitutional right to privacy prohibits schools from disclosing a student's sexual orientation without their consent. While the legal landscape in this area is evolving, several courts have ruled that Title IX and the Constitution safeguard transgender students' right to access sex-separated programmes and facilities that align with their gender identity.
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The Fair Housing Act
While the Fair Housing Act does not explicitly mention sexual orientation or gender identity, the Supreme Court held in Bostock v. Clayton County (2020) that discrimination on the basis of sexual orientation and gender identity is a form of sex discrimination, which is prohibited by the Act. This decision provides a precedent for protecting LGBTQ+ individuals from housing discrimination under the Fair Housing Act.
However, it is important to note that currently, there is no federal law that consistently protects LGBTQ+ individuals from housing discrimination. Only 22 states and the District of Columbia prohibit housing discrimination based on both sexual orientation and gender identity. This lack of consistent protection highlights the need for proposed legislation like the Fair and Equal Housing Act, which aims to add "sexual orientation" and "gender identity" as protected characteristics under the Fair Housing Act, providing explicit and consistent non-discrimination protections for LGBTQ+ people in housing.
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The 2003 Lawrence v. Texas decision
The specifics of the case are as follows: John Geddes Lawrence and Tyron Garner were two gay men who were arrested, held in custody, and charged with a crime after engaging in a private, consensual sexual act in Lawrence's apartment. The Texas Penal Code Ann. § 21.06(a) (2003) criminalized "deviate sexual intercourse" between individuals of the same sex, and the men were convicted under this statute. The men challenged the constitutionality of the law, arguing that it violated their rights under the Due Process Clause of the Fourteenth Amendment.
The Court of Appeals of Texas, Fourteenth District, initially upheld the statute, citing Bowers v. Hardwick (478 U.S. 186) as a controlling precedent. However, the US Supreme Court granted certiorari and ultimately ruled in favor of Lawrence and Garner, holding that the Texas statute did indeed violate the Due Process Clause. The Supreme Court's decision sent a clear message that criminalizing intimate sexual conduct between consenting adults of the same sex was unconstitutional and a violation of individual liberty.
The Lawrence v. Texas decision built upon earlier cases, such as Romer v. Evans (1996), where the Supreme Court struck down a state constitutional amendment that overturned local ordinances prohibiting discrimination against homosexuals, lesbians, or bisexuals. In the Romer case, the Court asserted that animus against a particular class of persons was not a legitimate government goal and that equal protection under the law must extend to politically unpopular groups. This precedent helped lay the groundwork for the Lawrence v. Texas decision, which further advanced the rights and protections for the LGBTQ+ community under the US Constitution.
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