Today is the second anniversary of the Supreme Court’s landmark decision in Bostock v. Clayton County. The ACLU represented Aimee Stephens and Don Zarda in their lawsuits, which were joined on appeal with Gerald Bostock’s, and we argued Bostock on their behalf to the nation’s high court. Stephens, Zarda, and Bostock were each fired from their jobs solely because they were members of the LGBTQ community. On June 15, 2020, we won: The court held that everyone in every state in the country who works at or applies for a job with an employer that has at least 15 employees is protected under federal law against employment discrimination based on sexual orientation or gender identity.

The LGBTQ community sought this achievement for more than 50 years. Prior to this monumental win, workers in fewer than half the states had established legal protections against sexual orientation and gender identity discrimination in employment, and now workers in all 50 states, as well as federal territories, do. Those who suffer such discrimination now have the right to file a complaint with the federal Equal Employment Opportunity Commission (EEOC), which will investigate the complaint, seek to resolve it, and either file suit on behalf of the complainant or authorize them to file suit.

Photo By Bill Clark/CQ Roll Call via AP Images

In addition, numerous sexual orientation and gender identity employment discrimination lawsuits that had been dismissed prior to Bostock have since been revived. Having such a clear and absolute federal ban on employment discrimination against LGBTQ people encourages employers to take steps to prevent such discrimination from occurring in the first place, and to remedy it quickly if it does.

Moreover, the ruling has had far-reaching effects beyond that long-sought breakthrough and its immediate impact on federal employment discrimination law, as evidenced by the more than 250 cases that have cited Bostock in the mere two years since the case was decided. Numerous courts have since followed the Supreme Court’s compelling reasoning — which did not depend upon the particulars of the federal employment discrimination law — to hold that other federal laws barring sex discrimination in other settings also protect against sexual orientation and gender identity discrimination.

That’s because the Supreme Court recognized in Bostock that, as a matter of simple logic, “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”

Among the federal decisions that have relied on Bostock’s reasoning was a ruling in the ACLU’s long litigated Grimm v. Gloucester County School Board case. In the final appeal in that litigation, the federal U.S. Court of Appeals for the Fourth Circuit held that, after Bostock, there is no question that adverse, unequal treatment of transgender students — including barring them from using restrooms corresponding to their gender identity — discriminates based on sex in violation of Title IX, the federal law prohibiting sex discrimination by federally funded schools.

Similarly, in Doe v. Snyder, the U.S. Court of Appeals for the Ninth Circuit concluded that Bostock’s reasoning requires that the federal law prohibiting sex discrimination by federally funded health care providers be understood to prohibit unequal treatment of transgender patients.

Bostock’s impact also extends to the federal agencies that enforce these laws. On his first day in office, President Biden issued an executive order directing all federal agencies to recognize that existing federal bans on sex discrimination protect against LGBTQ discrimination as well. The order was a welcome balm after four years under an administration that did not acknowledge Bostock and would not enforce the legal protections that LGBTQ people enjoy under federal law.

Establishing clear federal protections against employment discrimination based on sexual orientation and gender identity discrimination was a major milestone in the quest for LGBTQ rights. Court rulings and agency statements concluding that federal prohibitions on discrimination in housing, schools, health care, and other areas also extend to sexual orientation and gender identity discrimination have amplified the impact of that victory several times over.

But Bostock changed more than just how our federal laws are understood. Courts, administrative agencies that enforce state nondiscrimination laws, and state government officials in 10 states that have express statutory prohibitions on sex discrimination likewise already have recognized that those laws prohibit sexual orientation and/or gender identity discrimination in at least some contexts. Such state protections often go further than federal laws, prohibiting sexual orientation and gender identity discrimination by businesses serving the general public and by smaller employers than are regulated by federal law. The result is that, in addition to federal protections, LGBTQ people now have protections under the law of more than 60 percent of the states.

As we experience great threats to civil liberties across our nation and unprecedented legislative assaults on the rights of transgender young people, keeping our triumphs in mind is important to sustain and build resiliency and hope. Don Zarda passed away before his case reached the Supreme Court, and Aimee Stephens watched the Supreme Court argument but did not live to see the outcome. Their legacy lives on, however, in the protections that now exist not only in federal employment law, but under numerous other federal and state nondiscrimination laws and rules. Especially during Pride month, remembering and commemorating the impact of their victory in Bostock makes us very proud, and gives us the strength to keep fighting.

On an idle Tuesday afternoon, I received the call I had always feared most: My brother had been picked up by Immigration and Customs Enforcement (ICE). The tactic the officers used was not new. My brother’s probation officer had shared his meeting time with ICE, and they had waited outside of the building to arrest him. A year later, in 2019, I was able to call my brother to tell him Colorado had passed a law prohibiting probation officers from sharing personally identifiable information like scheduled meeting times with ICE. The law aimed to ensure members of the immigrant community could go to probation meetings and fulfill their court requirements without fear, because court officers would no longer be cooperating with ICE. It was an effort to restore trust and confidence in the judicial process. I thought other Coloradans would be protected against experiencing what my family went through. But recently, we learned that ICE is circumventing the law by using data brokers to find and deport immigrants.

For decades, immigrant communities have fought for protection from unjust enforcement due to collaboration between ICE and local governments. In recent years, Colorado has passed laws prohibiting state agencies and employees from sharing personally identifying information with federal agencies without a warrant or criminal investigation. The state has also ensured that no civil immigration arrests can be conducted on the way to court, at court, on the way back from court, or at probation offices. These protections have all been set in place to ensure immigrants can begin to rebuild trust within local government to engage in civic life, call for emergency services, get a driver’s license, or feel safe going to court.

Rather than obeying the intent of the law, ICE has begun to seek out new ways to find and deport people. In a report recently released by the Colorado Immigrant Rights Coalition, ICE contracted with data broker Appriss Solutions in order to get backdoor access to data that the 2019 law barred law enforcement officers from sharing directly. Appriss enables ICE agents to access real-time booking data through a platform called LexisNexis Accurint Virtual Crime Center.

LexisNexis sells itself as bringing “together disconnected data from over 10,000 different sources, including police agencies nationwide and public records,” to give law enforcement a “comprehensive view of people’s identities,” according to their website. While historically there has not been a way for LexisNexis to directly share data with ICE, a recent transition in the company’s data management practices may make this personal data directly available to all subscription members — including ICE. Similar data tools were previously implemented at a federal level with the specific intention of targeting Muslim communities after 9/11. Accurint has commercialized the same technology in an attempt to privatize law enforcement data management — and now, agencies like ICE pay to access data that lawmakers have tried to keep private.

Credit: The Colorado Immigrant Rights Coalition’s “Sabotaging Sanctuary” report.

However, it is not only ICE circumventing Colorado’s policies. County sheriffs also engage in information sharing through data contracts with the same company. It’s possible that not all offices are aware of their participation in this workaround. Some are aware: the chief of operations for the Denver County Sheriff’s Office, Vincent Line, is on Accurint’s board. By using Accurint Virtual Crime Center and Public Safety Exchange, criminal justice data from 87 policing agencies in Colorado — including booking and release time data — is stored in LexisNexis databases that ICE can access.

Many states have policies in place to prevent these sorts of arrests by ICE. In July 2021, ICE identified 463 jails across the country as uncooperative with immigration detainer requests and another 156 as proving limited cooperation. The organization has been candid about contracting with LexisNexis for the purpose of side-stepping state policies. In a budgetary explanation as to why they wanted to contract with Appriss, the agency explained: “Due to policy or legislative changes, [ICE Enforcement and Removals Office] has experienced an increase in the number of law enforcement agencies and state or local governments that do not share information about real time incarceration of foreign-born nationals with ICE … There would be a major operational impact on public safety without these screening tools.”

But we know that true public safety and community trust are at their strongest when ICE isn’t involved in local government operations. Immigrants across the country are scared to call for help in their most dire moments of need because they believe if they call 911, they may as well be calling immigration. States across the country are erecting civil liberties safeguards for a reason: to ensure true public safety for all communities. Yet operations that bypass state laws will continue to lead to numerous human rights violations, including violations of the right to privacy and the right to live free from discrimination.

The findings of this report highlight the need for bolder policies that keep communities’ personal data private and ensure that federal agencies comply with state law. However, the burden to correct this injustice doesn’t fall to ICE alone. Both Appriss Solutions and county sheriffs’ offices need to be held accountable for their complicitous data sharing. We cannot allow ICE or LexisNexis to continue to grow, in Colorado or any other state in the country, by collecting and sharing data that undermines state law and engenders human rights abuses.